M13 M15 HOLDINGS LLC v. ATHANSON (2024)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 26, 2023, which granted plaintiff's motion to preclude defendants from offering any evidence at trial or on a dispositive motion based on their failure to timely comply with discovery, unanimously affirmed, with costs.

The court providently exercised its discretion in granting the preclusion order in that willful and contumacious conduct may be inferred from defendants’ admitted failure to comply with their discovery obligations despite two so-ordered stipulations setting deadlines for such compliance, and their failure to provide a persuasive reason for all but one week of such noncompliance (see Lane v. City of New York, 210 A.D.3d 502, 503, 179 N.Y.S.3d 11 [1st Dept. 2022]).  Defendants did not fully comply with the deadline in the December 19, 2022 so-ordered stipulation, despite the signing of a confidentiality order, because they objected to the production of their personal financial information.  However, they did not seek a protective order.  They also did not comply with the deadline in the August 8, 2023 so-ordered stipulation and the additional one-week extension granted by plaintiff and did not provide an explanation for their noncompliance.  They made no effort to obtain an additional extension of time by seeking judicial relief.

Accordingly, we perceive no basis to disturb the motion court's determination given defendants’ repeated failure to comply with deadlines in the so-ordered stipulations and their failure to provide a reasonable explanation for their noncompliance (see Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000];  see also Cano v. BLF Realty Holding Corp., 243 A.D.2d 390, 390, 663 N.Y.S.2d 202 [1st Dept. 1997]).  Although defendants contend that they provided documents pursuant to the stipulations, plaintiff asserts that certain documents were not produced, and defendants did not provide the motion court with an affidavit supporting their assertions.

We have considered defendants’ remaining arguments and find them unavailing.