Recent Cases from New York’s Second Department Clarify What is Necessary for a Pre-Note of Issue Dismissal

Harris Beach PLLC

In recent rulings, New York’s Second Department has clarified the standard to strike pleadings for violation of Court Orders. Contrasting the Tolkoff and Onyenwe cases shows how the Court distinguishes between a violation of “orders for disclosure” and other orders when striking a party’s pleadings.

In Tolkoff v. Goldstein, 2020 N.Y. Slip. Op. 04341 (2d Dep’t 2020), the Court re-affirmed its prior rulings that, “[t]The Courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue, unless there has first been served a 90-day notice.” See Rezk v. New York Presbyterian Hospital, 175 A.D.3d 738 (2d Dep’t 2019). In Tolkoff, the Supreme Court, Suffolk County, held a Court cannot use an order to file a Note of Issue in the place of a 90-day demand required by CPLR 3216.

In Tolkoff, the defendant argued plaintiff’s failure to file a Note of Issue, which was ordered by the Court, was a violation of an order, allowing for dismissal under CPLR 3126, which provides that the Court may dismiss a complaint for a violation of an “order for disclosure.” The Second Department rejected this argument, holding that an order to file a Note of Issue is not an “order for disclosure” and, therefore, dismissal is not an appropriate remedy. Simply couching the order to file a Note of Issue as a discovery order is not enough. However, since plaintiff did violate the order, the Court has other means of sanctioning the plaintiff besides dismissal of the complaint. In Tolkoff, the Court decided appropriate sanction was a fine of $8,000.

The Tolkoff case can be contrasted with another recent decision, Onyenwe v. Hamernick, 2020 N.Y. Slip. Op. 04314 (2d Dep’t 2020). In Onyenwe, plaintiff moved, inter alia, to strike the defendant’s answer for willful failure to appear for a deposition pursuant to a preliminary conference order. Plaintiff’s motion was granted, and defendant appealed to New York’s Second Department, Appellate Division. The Second Department determined the order scheduling the deposition was an “order for disclosure” under CPLR 3126. Therefore, the Court’s order striking defendant’s Answer was affirmed.

When moving to strike a plaintiff’s complaint pursuant to CPLR 3126 for a violation of Court orders, those orders must include “disclosure” and not solely order plaintiff to file a Note of Issue. The Appellate Court will not interpret such orders as 90-day demands, even if the lower Court interprets its own order as a 90-day demand. When a motion to strike is made, the violation of disclosure provisions should be stressed, rather than a failure to file a Note of Issue. Additionally, these cases demonstrate the importance of adhering to the provisions of discovery orders, as repeated violations can justify the striking of pleadings.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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