Court Awards Sanctions Against City for Discovery Failures

In A.L. v City of New York, 2018 NY Slip Op 51033(U) (Sup. Ct. N.Y. Cty. June 21, 2018) (J. Tisch), the court awarded sanctions against the City of New York for its failure to provide discovery.

From the decision:

Regarding plaintiffs’ motion to strike the defendants’ answer, the Court will not recite the facts but refers to plaintiffs’ counsel’s affirmation in support of their motion to strike (Massimo aff, ¶¶ 9—20). These facts were not contested. Specifically, counsel for defendants do not contest that they kept agreeing to provide documents and a witness with knowledge of student aide training/training of Ms. Vega, and were court-ordered to do so, for almost three years. After plaintiffs’ demand dated July 28, 2014 was served, it took a year and a half for defendants to provide any response, which was replete with objections. Since then, defendants provided piecemeal responses and objections, agreeing to provide the requested information, were court ordered to do so, and carried this out for three years, ultimately leading to no actual response at all. Defendants also do not contest that they canceled the January 24, 2017 deposition without any reason, the day before it was scheduled, and did not agree to produce anyone else until the next compliance conference. Defendants do not contest that, at that conference on February 22, 2017, counsel insisted that Clara Harvey was the person with the requisite knowledge of student training; yet once her deposition was actually held, it turned out she had no knowledge at all of [*3]student aide training. Defendants do not contest that they only conducted a search for the 2010-2011 handbook in April of 2017 — which was over six years after the accident and almost three years since it was initially requested — only to find out, surprisingly, that the defendants were no longer in possession of the handbook.

In response to plaintiffs’ motion, however, defendants claim that they did not have to provide the materials or produce the requested witness, and the information sought is irrelevant. Contrary to defendants’ contentions, the information is relevant and defendants cannot simply ignore their obligation to provide discovery. Defendants incredulously put the burden on plaintiffs to find out who is responsible for training student aides (see Sisnett aff, ¶ 16), when that knowledge is undoubtedly within the knowledge of defendants and its employees. Defendants also incredulously claim that plaintiffs’ motion “is frivolous and a waste of judicial resources” (Sisnett aff, ¶ 22), when defendants failed to respond to demands and failed to comply with court orders, conference after conference, and good faith letter after good faith letter, frustrating the parties from proceeding with discovery and moving the case forward.

The pattern of noncompliance represents to the Court that the failure to provide disclosure was willful. It is evident that defendants failed to set forth any excuse for their delay and other contumacious behavior (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220, 222 [1st Dept 2010]). For example, the Court notes that there was no excuse whatsoever as to why a search for the requested documents was only conducted nearly three years after it had been requested. Accordingly, the Court finds that this warrants an appropriate sanction.

The court thus ordered that defendants were precluded from offering evidence as to their liability.

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