Willfulfailure to comply with a “discovery order” assumes an ability to comply
2012 NYSlip Op 03786, Appellate Division, First Department
One of the issues considered by the Appellate Division inthis phase of this litigation was Supreme Court’s denial of a motion to “strike”the New York City Department of Education’s [DOE] answer based on thepetitioner’s allegation that DOE had “failed to disclose” certain recordsshe had demanded in the course of discovery.
TheAppellate Division unanimously affirmed the Supreme Court’s ruling, explaining thepetitioner had failed to "show conclusively that [the DOE’s] failure todisclose was willful, contumacious or due to bad faith."
Thecourt noted that DOE was not in possession of certain records demanded that had been prepared by a formeremployee nor could DOE control whether the former employee “contacts them.”
In such cases the Appellate Division said the test as toa party's “willful failure to comply with a discovery order” assumesan ability to comply with such an order and the party's decision not to comply with such an order. However, ashowing that it is impossible to make the particular disclosure will bar theimposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.
Thecourt concluded that DOE had satisfied the test of “impossibility” insofar as theseparticular records were concerned.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm
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