Complaint Stricken After Plaintiff Repeatedly Failed to Appear for Deposition

On August 22, 2024, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in O'Rourke v. Hammerstein Ballroom, Index No. 161427/2019, striking the complaint and dismissing plaintiff's case after plaintiff repeatedly failed to appear for his court-ordered deposition, explaining:

"The drastic sanction of striking pleadings is justified only when the moving party shows conclusively that the failure to disclose was willful, contumacious or in bad faith" (Roman v City of New York, 38 AD3d 442 [1st Dept 2007] [citation omitted]); see also, Marks v Vigo, 303 AD2d 306 [1st Dept 2003] [noting that "[i]n view of the strong preference in our law that actions be decided on their merits . . . a court should not resort to the drastic remedy of striking a pleading for failure to comply with discovery directives unless the noncompliance is established to be both deliberate and contumacious"]; cf Couri v Siebert, 48 AD3d 370 [1st Dept 2008] [holding that plaintiffs' "dilatory, evasive, obstructive, and ultimately contumacious conduct" warranted striking his complaint] [internal citations omitted]). At the same time, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kilh v Pheffer, 94 NY2d 118, 123 [1999]).

Here, the appropriate sanction is dismissing plaintiffs complaint. If one credits plaintiffs counsel's account of the discovery issues after May 1, 2024, then from his perspective, he failed to prepare his client for deposition for two months (May 1 · June 26) despite being "ready, willing, and able to appear on June 28." Presumably, he planned to meet with and prepare his client on June 27th. Yet as soon as he saw AEG's cancellation email at 2:32 pm on June 26, he chose to take the deposition off his calendar rather than push for it to go forward as ordered by the court on the penalty of sanctions (see NYSCEF # 38). He then cancelled the planned June 27 client preparation meeting, and then, at 2:32 in the afternoon, scheduled a mediation for the very next day. Taking the charitable view that plaintiff's counsel is telling the truth, his actions reflect a serious lack of judgment which, when combined with two years, eight previous disregarded orders, and another two subsequent failures to appear for deposition, reflects a willful--if not brazen--and contumacious disregard for this court's orders, necessitating serious sanctions.

And this is the charitable view. Under any less charitable view, plaintiff's counsel's story is so wildly unrealistic that can only imply that plaintiff was never ready for deposition on June 28 or any date and was never set to be prepared. Plaintiff's counsel's actions and representations smack of gamesmanship, which this court does not condone. In view of plaintiff's counsel's lack compliance with the most recent order giving him one more opportunity to move this case forward, coupled with his longstanding noncompliance with nine orders equaling nine other opportunities to move this case forward, plaintiff's counsel's inaction shows the lack of seriousness in the prosecution of this case. The sanction befitting the lackadaisical handling of this case is dismissal of plaintiff's complaint.

As this case shows, failure to comply with court-ordered deadlines and discovery can lead to the striking of a party's pleading. But it's also important to note that the plaintiff here violated nine separate orders to appear for his deposition. So the court gave this plaintiff and his counsel a lot of rope before finally striking the complaint. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning sanctions motions for failure to comply with court orders or discovery.