ABUZAID v. ALMAYOUF (2026)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about April 20, 2024, which granted plaintiff's motion for CPLR 3126 sanctions to the extent of:  (1) ordering defendant to produce certain documents, to “identify any and all responsive documents that have been lost and/or destroyed,” and to “provide any electronic devices she used to publish statements about the plaintiff, plaintiff's counsel, and/or this action for forensic examination by an expert chosen by the plaintiff, which examination shall be at the defendant's expense”;  (2) ordering that “upon any failure to comply with this order, the defendant shall be precluded from offering in her defense on any dispositive motion or at trial, any evidence not so produced”;  and (3) ordering defendant to pay plaintiff's attorneys' fees and costs incurred in connection with this motion, in an amount to be determined, unanimously affirmed, without costs.  Order, same court and Justice, entered January 6, 2025, which granted plaintiff's motion for CPLR 3126 sanctions to the extent of precluding defendant from offering in her defense any evidence not produced;  ordering that a negative inference be drawn “as to any evidence that was demanded by the plaintiff and not produced by the defendant per the court's orders”;  striking defendant's answer;  and ordering defendant to pay plaintiff's attorneys' fees and costs incurred in connection with this motion, in an amount to be determined, unanimously affirmed, without costs.

In this defamation action, the motion court providently exercised its discretion in directing discovery and awarding discovery sanctions for defendant's chronic noncompliance with her discovery obligations.  At her deposition in January 2022 defendant admitted that she had not produced several categories of disclosure demanded by plaintiff, including social media posts directly relevant to plaintiff's claims.  By order dated July 18, 2022, the court directed defendant to produce the missing documents highlighted at her deposition and warned that failure to comply “may result in a preclusion order or other sanctions pursuant to CPLR 3126.”

The motion court providently exercised its discretion in directing discovery and awarding sanctions in the April 2024 order.  The record demonstrates that defendant failed to comply with the court's directions in the July 2022 order and continued to make derogatory posts about plaintiff on her social media accounts.  Defendant also failed to cooperate in efforts to identify and recover material deleted by defendant herself, or as a result of a social media platforms' suspension or termination of defendant's accounts.

Defendant's challenges to the relevancy of these documents are meritless.  The documents are clearly relevant to plaintiff's claims.  Additionally, defendant previously agreed to produce many of them and was previously ordered by Supreme Court in its July 2022 order to produce all of them.  Defendant's purported safety concerns provide no excuse for nondisclosure, as defendant could have sought a protective or confidentiality order, but did not do so.  Defendant's characterization of the scope of the forensic examination of her devices is misleading.  The aim of such examination, which is to be performed by a third party, is to identify responsive documents that have been lost or destroyed and to determine whether they may be recovered.  Such an examination is justified by defendant's admissions that some such documents have been lost or deleted.  The motion court providently exercised its discretion in assessing the cost of such forensic examination to defendant.

Although plaintiff may be able to access some materials independently, this “does not preclude plaintiff[ ] from seeking these records directly from defendant[ ] in discovery” (see Z.D. v MP Mgt., LLC, 150 AD3d 550, 552 [1st Dept 2017] ).  Defendant's pro se status provides no excuse for her non-compliance with her discovery obligations.  Defendant was represented by counsel during the bulk of the relevant time period.  In any event, a pro se litigant “acquires no greater right than any other litigant” (Basmanov v Shiwcharan, 224 AD3d 435, 435 [1st Dept 2024] ), and does not have “license to ignore court orders, engage in dilatory and obstructive conduct or malign officers of the court” (Couri v Siebert, 48 AD3d 370, 371 [1st Dept 2008] ).¹

The motion court also providently exercised its discretion in awarding discovery sanctions, including striking the answer, in the January 2025 order.  It is clear that defendant made no attempt to comply with the April 2024 order (which was itself premised on her noncompliance with the July 2022 order) – either by producing documents, identifying lost or destroyed documents, or providing her devices for forensic examination – and instead repeatedly posted on social media about her frustration with the April order and her disinclination to comply with it.

Defendant's claim that she was denied due process in connection with the two orders on appeal is unavailing.  Both relevant motions were made on notice and defendant had an opportunity to respond thereto, which she did and which responses were considered by the motion court.  Oral argument was not required (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n [1990];  Matter of Marsh, 207 AD2d 749, 749 [1st Dept 1994] ).  The motion court properly relied on an opposition brief filed by defendant's prior counsel, which defendant made no attempt to withdraw or supplement.  The motion court had no obligation to await the determination of defendant's appeal from the April 2024 order before deciding the later sanctions motion because there was no basis for an automatic stay and defendant did not request a discretionary stay.  The sanctions imposed by the motion court are also not grossly disproportionate or unduly severe.

Attorneys' fees are properly awarded as a sanction for frivolous conduct, including discovery abuses like those at issue here (see Lis v Lancaster, 225 AD3d 568, 568–569 [1st Dept 2024];  150 Centreville, LLC v Lin Assoc.  Architects, P.C., 151 AD3d 912, 913 [2d Dept 2017];  see also Maxim, Inc. v Feifer, 161 AD3d 551, 554 [1st Dept 2018] ).  Defendant's objections to the amount of the attorneys' fee award arising from the January 2025 order are not before us, as the amount of the award is the subject of a separate order that is not at issue on appeal.

Finally, defendant's repeated noncompliance with court orders without reasonable excuse warrants striking her answer, especially where, as here, at least one prior order warned of the possibility of such a penalty (see LaSalle Talman Bank, F.S.B. v Weisblum & Felice, 99 AD3d 543, 543 [1st Dept 2012] ).

FOOTNOTES

1.   Additionally, in her appellate brief defendant invokes a case (Emigrant Mtg. Co. v St. Francis, 131 AD3d 827) that does not appear at the given citation and which does not appear to exist.  Defendant is cautioned that her pro se status does not excuse her failure to check the legal citations that she offers to a court.