NARAMORE v. MOUNT SINAI HEALTH SYSTEM INC (2026)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about October 18, 2024, which, to the extent appealed from, denied plaintiff's motion to strike defendants’ answer and affirmative defenses, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying plaintiff's motion to strike defendants’ pleadings (CPLR 3126;  see Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [2008];  Han v. New York City Tr. Auth., 169 A.D.3d 435, 435, 94 N.Y.S.3d 26 [1st Dept. 2019]).  Defendants allege that since August 2024, they have produced more than 1,000 documents and that any delay in their production is attributable to their attempts to settle and to avoid unnecessary costs.  In July 2024, defendants received an estimated cost of $2 million from their vendor to undertake the previously ordered electronically stored information (ESI) search.  The record does not demonstrate that defendants’ conduct was clearly willful and contumacious so as to warrant such a harsh sanction (see Spitzer v. 2166 Bronx Park E. Corps., 284 A.D.2d 177, 177, 726 N.Y.S.2d 639 [1st Dept. 2001]).  Nevertheless, defendants are reminded to comply with the motion court's multiple mandates, affirmed by this Court, to produce all outstanding non-privileged documents forthwith, and to put an end to the years’ long discovery that has ensued in this case.

Plaintiff's assertion that the court's October 2024 order contravened its prior order, entered July 3, 2023 and affirmed by this Court (227 A.D.3d 528, 209 N.Y.S.3d 416 [1st Dept. 2024]), is unavailing.  Plaintiff argues that the October 2024 order improperly directed defendants to more narrowly produce outstanding “relevant” documents as opposed to all 724,633 “hits” generated from defendants’ ESI search as required by the July 2023 order.  However, the July 2023 order did not direct defendants to produce all 724,633 “hits” but rather directed defendants to “review” the documents and produce “any responsive non-privileged documents.”  Plainly, defendants’ review of the documents would be unnecessary if they were supposed to produce all 724,633 ESI items.  And the court's direction is explicitly limited to non-privileged documents.  In short, the court's October 2024 order was consistent with its prior order and need not be disturbed.

We have considered plaintiff's remaining arguments and find them unavailing.