Motion for Discovery Sanctions, New York Supreme Court–At A Glance

Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for discovery sanctions in New York Supreme Court. For more detailed information, including local rules, please see the New York Supreme Court SmartRules Guides: Motion for Discovery Sanctions, Opposition to Motion for Discovery Sanctions, and Reply in Support of Motion for Discovery Sanctions.

 Deadline

There is no provision of the CPLR, Uniform Rules or Commercial Division Rules restricting the time to bring a motion to compel or motion for discovery sanctions.  A restriction may be embodied in a scheduling order of the Court, such as one resulting from a Preliminary Conference.

Motion for Discovery Sanctions Rules

If a party fails to obey an order for disclosure of willfully fails to disclose information the court finds ought to have been disclosed, the court may make such orders as it deems just. CPLR 3126. The options available to the court include, but are not limited to the following.

(1) “Issue Sanctions.” The court may order that the issues to which the withheld information is relevant are determined in favor of the party from whom discovery was withheld. CPLR 3126(1).

(2) “Evidence Sanctions.” The court may prohibit the party who withheld discovery from supporting or opposing designated claims or defenses, introducing designated evidence or witnesses. CPLR 3126(2).

(3) “Terminating Sanctions.” The court may strike designated pleadings or “parts thereof,” stay proceedings until the discovery order(s) are obeyed, dismiss the action or any part, or render judgment by default against the party withholding discovery. CPLR 3126(3).

There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. CPLR 3101(a).

Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. CPLR 3101(b).

The work product of an attorney shall not be obtainable. CPLR 3101(c).

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement. CPLR 3101(f).

Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. CPLR 3101(g).

In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in Civil Practice Law and Rules subdivision (a)(1). There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision 3101(i) shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law. CPLR 3101(i).

When a party is in default for failure to appear, that party is not entitled to notice or service of any copy required under Civil Practice Law and Rules Article 31. CPLR 3105.

Counsel must confer in good faith to resolve the issues raised by the motion before brining any “motion related to disclosure.” Uniform R. 202.07(a).

In all Commercial Division cases, parties must strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Such deadlines, however, may be modified upon the consent of all parties, provided that all discovery shall be completed by the discovery cutoff date set forth in the preliminary conference order. Commercial Div. R. 13.

Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the expiration of such deadline. Commercial Div. R. 13.

Non-compliance with such an order may result in the imposition of an appropriate sanction against that party pursuant to Section 3126 of the CPLR. Commercial Div. R. 13.

In the Commercial Division, counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. If counsel are unable to resolve a disclosure dispute, the aggrieved party shall contact the court to arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel should request a conference by telephone if that would be more convenient and efficient than an appearance in court. Commercial Div. R. 14.

In the case of disclosure-related motions, an affirmation of good faith effort to resolve the issues raised by the motion must be annexed to the Notice and must indicate the time, place and nature of the discussions, the issues discussed and any resolutions. If no consultation with opposing counsel was held, the affirmation must indicate why. Uniform R. 202.07(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

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