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[3]; 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).”

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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.