Court Strikes Plaintiff’s Complaint And Dismisses Action For Discovery Violations

On September 30, 2024, Justice Joel M. Cohen issued a Decision and Order in Five Star Electric Corp. v. The Trustees of Columbia University et al., Index No. 655947/2018, granting Defendants’ motion to strike Plaintiff’s complaint pursuant to CPLR § 3126. The action arose from a construction project involving a new building at Columbia University. Defendants moved to strike Plaintiff’s complaint and dismiss the case based on Plaintiff’s claimed willful failure to provide discovery as ordered by the Court. The Court agreed, explaining:

Here, Defendants have established persuasively that Plaintiff has willfully failed to provide discovery as directed in the Court's January 27, 2021 Decision and Order, February 26, 2021 Discovery Order, and the September 7, 2021 Discovery Order. Specifically, Plaintiff failed to abide by the discovery deadlines and failed, despite specific directives in said orders, and without good cause, to respond to Defendants' discovery demands and to supplement its interrogatory responses to Columbia and LendLease' s discovery demands and interrogatories, each dated June 8, 2020 and August 11, 2020.

The record reflects that Defendants followed up numerous times regarding the interrogatory responses, and Plaintiff kept kicking the can down the road and eventually stopped responding (NYSCEF 365). The extreme duration of Plaintiff's "fail[ure] to timely provide discovery," representing approximately two-thirds of the six-year lifespan of this litigation, "demonstrate[s] that [Plaintiff's] noncompliance was willful, contumacious and in bad faith." (Williams v Shiva Ambulette Serv. Inc., 102 AD3d 598, 598 [1st Dept 2013] [holding that the "court did not abuse its discretion in striking the complaint and dismissing the action" where Plaintiff had an "unexplained pattern of disobeying four successive court orders" and failed "to timely provide discovery"]).

Plaintiff argues that this motion should be denied because there is a strong public policy preference in having cases decided on the merits and not on procedural grounds. [footnote omitted]. While generally true, CPLR § 3126 and New York case law equally allow courts to exercise their discretion and to strike a party's pleadings when a party's [sic] discovery rise to the level of being willful, contumacious, and in bad faith (Rosenfeld, 161 AD2d at 374; Williams, 102 AD3d at 598).

Here, Plaintiff has failed to provide a reasonable response as to why it did not meet the Court's deadlines. Plaintiff's opposition argues that the parties never agreed to the ESI search terms, and it needed the ESI search terms to adequately respond to Defendants' Interrogatories (see Richards Aff. at ¶¶ 9-13). Plaintiff submits that "[a]ny notices of extra work claims will not only be in the records of Five Star but will be in Defendants' records as well" and "[t]here are no notices of extra work claims which only Five Star would possess" (id. ¶ 11). However, Plaintiff fails to adequately explain why it could not search its own records to find the notices and respond to Defendants' interrogatories, other than it was time consuming. Nor is there any indication in the email communications to support Plaintiff's position that ESI was required for Plaintiff to properly respond to Defendants' interrogatories. Rather, as noted, on March 3, 2022, Plaintiff stated that it had reviewed the documents and that they intended to serve answers to the interrogatories with what they had by the end of the following week. Furthermore, at no point after the Fall of 2021 did Plaintiff raise this issue with the Court.

Plaintiff[’s] belated attempt [to] comply with its discovery obligations in connection with the instant motion by now providing a supplemental response to Lendlease' s First Set of Interrogatories (NYSCEF 374) is unavailing. There remains no justification for Plaintiff's three years of delay and non-compliance. Further, Plaintiff did not even attempt to provide a supplemental response to Defendant Columbia's interrogatories.

And contrary to Plaintiff's assertion, Defendants have been prejudiced by the delay. Almost six years have passed since this lawsuit was filed, and seven years since this construction project was substantially completed. As more time passes it will be increasingly difficult for Defendants to defend against Plaintiff’s claims as relevant witnesses have moved on to different roles or companies, memories have faded, and evidence has now become stale. Even Plaintiff’s counsel acknowledged at the June 4, 2024 conference that "[o]ur client has gone through significant changes of leadership and institutional knowledge has been lost, so we have the owner of the company, basically, trying to figure out what's what" (Tr. 06042024 at 5:15-18). It was incumbent on Plaintiff to abide by the Court's Orders and provide the discovery responses in a timely and comprehensive manner years ago. Plaintiff’s failure to do so in this instance is fatal to its lawsuit.

While courts have a stated preference to decide cases on the merits, this case demonstrates that a party cannot rely on such preference in all instances. The attorneys at Schlam Stone & Dolan frequently litigate discovery issues and sanctions motions. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues or motions.