Cases are rarely directly dismissed for discovery failures. Generally, discovery failures manifest themselves in a bad outcome at trial, in a bad outcome on summary judgment, or in a flameout prior to trial, with attorneys withdrawing and the case sputtering to a finish.  Here, in Cascardo v Dratel  2021 NY Slip Op 30667(U) March 4, 2021 Supreme Court, New York County Docket Number: 101055/2017 Judge: Erika M. Edwards discovery failures led directly to dismissal.

“Over the past three years, Plaintiff has repeatedly refused to comply with Defendants’ numerous requests and multiple court orders to provide Defendants with authorizations for copies of the flies from Plaintiff’s previous ERISA attorney and forensic accountant which is
relevant to her claim that Defendants copied documents from those files, duplicated research performed by prior counsel, and billed for the work.

Where a party “willfully fails to disclose information which the court finds ought to have been disclosed,” the court may strike pleadings or parts thereof, dismiss the action or any part thereof or enter a default judgment against  the insubordinate party (CPLR 3126[3]). Although actions should be disposed of on the merits whenever possible, the court may strike a pleading as a sanction against a party who refuses to obey an order for disclosure (Reidel v. Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]). A Plaintiff’s long continued pattern of noncompliance with with orders and discovery demands give rise to an inference of willful and contumacious conduct (Jones v Green, 34 AD3d 260, 261 1st Dept 2006] citing Goldstein v CIHC World Markets C01p., 30 AD3d 217 [1st Dept 2006]; see Perez v City of New York, 95 AD3d 675, 676 [181 Dept 2012])”

“However, the court grants Defendants motion to dismiss Plaintiff s A1mmded Verified Complaint and strikes Plaintiffs pleadings for Plaintiffs continued failure to provide the authorizations for Defendants to obtain the files from her previous ERISA attorney and forensic
accountant. “

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.