In Wagman v Morgan Stanley Children’s Hospital of New York Presbyterian, No. 160709/21, 2022-05622, 771, M-3778, 2023 N.Y. Slip Op. 05214, 2023 WL 6626886 (N.Y.A.D. 1 Dept., Oct. 12, 2023), the court unanimously affirmed the lower court’s Order granting plaintiff’s motion, pursuant to CPLR 3126, to strike defendants’ answer for spoliation of evidence. In this…
Read More Failure to Preserve Slip/Fall Video Results in Stricken AnswerDespite what popular culture may imply, the main battles of litigation are not waged in the courtroom, but rather in various pre-trial events that, together, comprise what is known as “discovery.” In this phase, the parties use various methods to obtain (“discover”) information from the other side. Among the various (and most prevalent) discovery methods…
Read More A Cautionary Tale Regarding Attorney Deposition ConductIn Mascaro v. Brant Publications, Inc., No. 152662/2019, 2020 WL 5229247 (N.Y. Sup Ct, New York County Aug. 28, 2020) – in which plaintiff asserts claims for age and disability discrimination under the New York State Human Rights Law – the court denied plaintiff’s motion (pursuant to CPLR 3124 and 3126) to compel responses to…
Read More Pre-Preliminary Conference Discovery Motion Denied in Age/Disability Discrimination CaseThe so-called “Jackson Affidavit” – named after a First Department case, Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952 (1st Dept. 1992) – is frequently used in New York state court litigation to, in sum, confirm that documents requested as part of discovery have been searched for and not found. Jackson…
Read More The “Jackson Affidavit” in New York PracticeIn Husovic v. Structure Tone, Inc., 2019 NY Slip Op 02954 (App. Div. April 18, 2019), the court upheld discovery sanctions against a defendant who failed to comply with court orders. From the decision: If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the…
Read More Three Discovery Violation Strikes: You’re OutA recent decision, Williams v. Suttle, 2019 NY Slip Op 00163 (App. Div. 2d Dept. Jan. 9, 2019), illustrates the perils of failing to comply with discovery orders. From the decision: Here, the willful and contumacious character of the plaintiffs’ actions can be inferred from their repeated failures to comply with the defendant’s notices to appear…
Read More Dismissal of Complaint Affirmed Due to Discovery FailuresIn Simons v. Petrarch LLC and Hicham Aboutaam, 2017 NY Slip Op 30457(U) (NY Sup. Ct. NY Cty. March 1, 2017) (J. Hagler), a sexual harassment case, the court applied spoliation sanctions on plaintiff. This case is instructive as to the obligations of litigants generally, and in sexual harassment cases in particular, to preserve evidence.…
Read More Sexual Harassment Plaintiff Hit With Spoliation SanctionsIn Johnson v IAC/Interactive Corp., 2016 NY Slip Op 31520(U) (NY Sup. Ct. Index No. 155837 /14 Aug. 12, 2016), an employment discrimination case, the court evaluated the parties’ motions to compel discovery (per CPLR 3124) and for sanctions and/or evidence preclusion (per CPLR 3126). The court held, among other things, that plaintiff was entitled to…
Read More Court Orders Discovery Relating to Termination of Similarly-Situated Employees in Gender Discrimination CaseIn Spearin v. Linmar, L.P., 129 AD3d 528 (App. Div. 1st Dept. June 16, 2015), a personal injury case, the court addressed an issue that is coming up with increasing frequency: namely, the extent to which a plaintiff’s social media postings must be turned over in discovery. The court reversed a lower court decision that “ordered…
Read More Piano-Playing Plaintiff’s Facebook Posts Ordered for In-Camera InspectionA recent case, Gonzalez v. City of New York (decided by the Supreme Court, Queens County on May 4, 2015) represents yet another example of why parties to litigation – or persons who contemplate being a party to litigation – should refrain from posting on social media anything whatsoever concerning their claims. In this personal injury case,…
Read More Court Orders In Camera Inspection of Personal Injury Plaintiff’s Social Media Postings