A legal malpractice case was lost in discovery disputes. In a fairly rare application of CPLR 3126, the complaint was stricken in Gorbatov v Tsirelman Decided on June 22, 2022
Appellate Division, Second Department.
“In 2014, the plaintiffs commenced this action against, among others, the defendant Leon Kucherovsky and the defendants Gary Tsirelman and Law Office of Gary Tsirelman, P.C. (hereinafter together the Tsirelman defendants, and collectively with Kucherovsky, the defendants), the plaintiffs’ former attorneys, inter alia, to recover damages for legal malpractice and violation of Judiciary Law § 487. In August 2015, Kucherovsky served the plaintiffs with demands for a bill of particulars and discovery. In July 2016, the Tsirelman defendants also served the plaintiffs with demands for a bill of particulars and discovery. The plaintiffs failed to respond to the demands. Thereafter, pursuant to a stipulated preliminary conference order dated January 11, 2018 (hereinafter the January 2018 order), the plaintiffs were directed to respond to the defendants’ demands by February 12, 2018. Although the plaintiffs consented to the January 2018 order, they did not respond to the defendants’ demands. Thereafter, in a compliance conference order dated May 31, 2018 [*2](hereinafter the May 2018 order), the Supreme Court directed the plaintiffs to respond to the defendants’ demands within 20 days. The plaintiffs did not do so.”
“”Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'” (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019, quoting CPLR 3126). “If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided . . . , the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042[d]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v Dicerbo, 166 AD3d 838, 839). “The drastic remedy of striking a pleading is appropriate when there is a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d 1021, 1022; see CPLR 3126; Gafarova v Yale Realty, LLC, 174 AD3d 862, 863). Moreover, “[t]he willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815 [internal quotation marks omitted]; see Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d at 1022-1023).
Here, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint upon finding, inter alia, that the plaintiffs’ repeated disregard of the defendants’ demands for discovery and bills of particulars, the plaintiffs’ failure to provide responses to the demands despite having participated in discovery conferences wherein they stipulated to provide such responses, the plaintiffs’ inadequate responses when they did respond, and the absence of an adequate excuse for these failures constituted willful and contumacious behavior (see Sparakis v Gozzer Corp., 177 AD3d 1011, 1012-1013; Williams v Suttle, 168 AD3d 792, 793-794).”