VIOLATED ORDERS WHICH DIRECTED RESPONSES TO DISCOVERY DEMANDS
After A.M. was injured during a fight that occurred as he was leaving a Brooklyn bar owned by the Defendant P., a personal injury case was filed with the Kings County Supreme Court.
And when A.M. served discovery demands on the bar, its unresponsiveness led to motion practice. By Order dated August 20, 2021, P. was given 30 days to respond. And when that deadline was missed, by Order dated May 19, 2022, the bar was given 20 more days to answer those demands, failing which P would be “precluded from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion, upon further motion for same, pursuant to CPLR 3126(2)."
Of course, that motion was made several months later, in August of 2022, and the judge granted the preclusion request, as previously outlined.
On appeal, the Appellate Division, Second Department, noted that P. was required to “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious defense.” Because P. didn’t offer a “reasonable excuse” for its failure to comply with the motion court’s order, and in the absence of showing a “potentially meritorious defense,” the AD2 left the outcome undisturbed.
Ironically, they barred a bar from defending itself ….
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DECISION