Willful failure to comply with a “discovery order” assumes an ability to comply

Willful failure to comply with a “discovery order” assumes an ability to comply
2012 NY Slip Op 03786, Appellate Division, First Department

One of the issues considered by the Appellate Division in this phase of this litigation was Supreme Court’s denial of a motion to “strike” the New York City Department of Education’s [DOE] answer based on the petitioner’s allegation that DOE had “failed to disclose” certain records she had demanded in the course of discovery.

The Appellate Division unanimously affirmed the Supreme Court’s ruling, explaining the petitioner had failed to "show conclusively that [the DOE’s] failure to disclose was willful, contumacious or due to bad faith."

The court noted that DOE was not in possession of certain records demanded that had been prepared by a former employee nor could DOE control whether the former employee “contacts them.”

In such cases the Appellate Division said the test as to a party's “willful failure to comply with a discovery order” assumes an ability to comply with such an order and the party's decision not to comply with such an order. However, a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.

The court concluded that DOE had satisfied the test of “impossibility” insofar as these particular records were concerned.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm