... STILL NO DEPOSITION?
In S. v E* B* Group LLC, the Appellate Division, First Department reversed a lower court order that had granted the plaintiff’s motion to strike the defendants’ answer and schedule an inquest on damages. The reversal hinged on procedural deficiencies in the plaintiff’s motion, specifically the failure to comply with the good faith requirements outlined in the Uniform Rules for Trial Courts.
The plaintiff, S, had moved under CPLR 3126 to strike the defendants’ answer due to their repeated noncompliance with court orders directing them to appear for a deposition. The Bronx County Supreme Court granted this motion, effectively penalizing the defendants by removing their ability to contest the claims and moving directly to a damages assessment. However, the AD1 found that the plaintiff’s counsel had not satisfied the procedural prerequisites for such a drastic remedy.
Central to the appellate court’s reasoning was the inadequacy of the good faith affirmation submitted by plaintiff’s counsel. Under 22 NYCRR § 202.20-f(b), a party seeking relief for discovery violations must demonstrate that they attempted to resolve the dispute through an in-person or telephonic conference. Plaintiff’s counsel merely stated that defendants had failed to comply with four deposition orders and that he had contacted them on a specific date to confirm the deposition. This statement was deemed perfunctory and lacking in the detail required by the rule.
The affirmation did not indicate whether the communication was by phone, email, or letter, nor did it specify who initiated the contact, whether any messages were left, or whether follow-up efforts were made. These omissions rendered the affirmation noncompliant with both § 202.20-f(b) and related provisions under § 202.7. The court cited precedent which underscored the importance of a properly documented good faith effort before imposing sanctions like the striking of a pleading.
Because the procedural defect was dispositive, the appellate court declined to address whether the defendants’ repeated failure to comply with deposition orders over a two-year period was willful and contumacious. The motion was denied without prejudice, meaning the plaintiff may renew the application if proper procedural steps are taken.
This decision serves as a reminder that even where substantive noncompliance may be evident, procedural missteps can derail a motion and delay resolution of the case.
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DECISION