Behind The Bench Discovery . - University At Buffalo
The Law Alumni AssociationUniversity at Buffalo School of LawBehind the BenchDiscovery Practice and Motion AbuseMarch 14, 2018I.II.Local Rules of Participating Judges1-1245812Hon. Tracey A. BannisterHon. Catherine Nugent-PanepintoHon. Frank A. Sedita, IIIHon. Timothy J. WalkerHon. Dennis E. WardHon. Henry J. NowakCPLR 3216 and Supplementary Practice Commentary14Penalties for refusal to comply with order or to discloseWhich Sanction to Impose?Defendants Precluded from Introducing Facebook Printouts UnlessPerson Who Procured Them Is Produced for a DepositionIII.Relevant Case Law16Forman v. Henkin, 2018 WL 828101, N.Y. Slip Op. 0101516- Personal injury action by rider, who fell from horse and allegedlysuffered spinal and traumatic brain injuries- Pre-accident photographs privately posted on horseback rider'ssocial networking website account that she intended to introduce attrial and all privately posted post-accident photographs of rider thatdid not depict nudity or romantic encounters were discoverableagainst owner of horse.- Even if only publicly available photograph on account was notrelevant, since rider had tendency to privately post photographsthat were representative of her activities, subject photographs wererelevant to rider's assertions that she could no longer engage inpre-accident activities she had enjoyed and that she had becomereclusive.
Lobello v. New York Cent. Mut. Fire Ins. Co., 152 A.D.3d 1206(4th Dept 2017)25- Following discovery, during which defendant repeatedly failed toprovide documents in a timely manner or at all, plaintiff moved forvarious forms of relief, including an order striking defendant'sanswer based on discovery violations.- Supreme Court granted plaintiff's motion in part, orderingdefendant to pay plaintiff 1,500 as costs and sanctions fordiscovery violations and to provide plaintiff with claim notes foronly the 2010 loss, with the redactions modified.- Contrary to plaintiff's contention, the court did not abuse itsdiscretion in imposing only a monetary sanction on defendant forits failure to disclose all of its claim notes. That penalty wascommensurate with the particular disobedience it was designed topunish.BDS Copy Inks, Inc. v. International Paper, 123 A.D.3d 1255 (3dDept 2014)- Trial court did not abuse its discretion in striking plaintiffs'complaint as discovery sanction, based on plaintiffs' continuedrefusal to disclose documents bearing on their claimed damages,instead insisting that defendant's ability to shift through 60 to 80banker's boxes in warehouse represented reasonable compliancewith document production request.29
Hon. Tracey A. BannisterPart 31 - Eighth Floor50 Delaware AvenueBuffalo, New York 14202Phone: (716) 845-9492Facsimile: (716) 845-5152NO MOTIONS PAPERS VIA FACSIMILEConfidential Law Clerk:Secretary:Court Clerk Part 31:Mary L. Mikan, Esq.Sandra PanfilRita Ventura845-9493845-9492845-2759MOTIONS:Civil & Matrimonial Wednesdays @ 9:30 am, per schedule in Part 31.Please call Court Clerk for exact dates and times prior to schedulingmotion, or at any other times the Court and counsel mutually arrange.E-FILES:The Court requests a courtesy hard copy with confirmation notice of alle-filed documents as soon as possible.CIVIL & MATRIMONIAL MATTERS:All original moving papers, answering papers, memoranda and special term notes ofissue to be sent to chambers before 12:00 noon on the Monday before the motionreturn date. If motion papers are not timely served, motion may be adjourned bythe court. TROs on notice if other attorney is known. No general adjournments.Adjournments granted with consent of parties, subject to Court’s approval.Civil Actions:Preliminary conference will be held within forty-five (45) days of the Court’s receiptof filed RJI. All conferences before IAS Judge or law clerk. Adjournments grantedwith consent of all parties, subject to Court’s approval, by contacting secretary.Matrimonial Actions:Preliminary conferences will be scheduled upon assignments, Pleadings discoverydemands, 236B Affidavits, motions, responses, prior orders, settlement proposals,proposed stipulations or agreements should be submitted to the Court as far inadvance as possible. Parties must be present at all conferences unless instructedotherwise by the Court.TRIALSTrial dates considered to be “date certain” and adjournments will be granted only inthe most exceptional circumstances. All motions in limine shall be made returnableprior to jury selection. Expert disclosure deadlines per Court’s order.1
HON. CATHERINE NUGENT-PANEPINTO92 Franklin Street, Part 2, 3rd FloorBuffalo, New York 14202Phone: 845-2693 / Facsimile:MOTION PAPERS VIA FACSIMILE OR EMAIL BY PRIORARRANGEMENT WITH COURT AND COUNSELLaw Clerk:Secretary:Court Clerk:Kristen M. WolfKristin J. McCrackenSally Civil and Matrimonial: Thursdays at 9:30 a.m. (Except with prior arrangement). Please callCourt Clerk for exact dates prior to scheduling motion. Infant Settlements: Contact Court Clerk toschedule. Motions, cross-motions and orders to show cause cannot be scheduled until there is a paidstamped note of issue showing the original was filed with the Erie County Clerk. Motions for SummaryJudgment should be made no later than one hundred twenty (120) days after the filing of the note of issue,except with leave of Court on good cause shown.All original moving papers, answering papers, memoranda and special term notes of issue shouldbe sent to chambers before 12:00 noon on the Tuesday before the motion return date. If motion papers arenot timely served, motion may be adjourned by the court. TROs on notice if other attorney known. Nogeneral adjournments. Adjournments granted with consent of parties, subject to Court’s approval, bycontacting secretary or court clerk. Only stipulated or initialed Orders with consent of opposing counselshould be submitted to the Court for signature.CONFERENCES:Civil:Preliminary conference will be held within forty-five (45) days of the Court’s receipt of filed RJI.All conferences before Judge or law clerk. Adjournments granted with consent to all parties, subject toCourt’s approval, by contacting secretary. At the conference, a scheduling order may be issued.Matrimonials:Preliminary conferences will be scheduled upon assignment. Pleadings, discovery demands, 236B affidavits, motions, responses, prior orders, settlement proposals, proposed stipulations or agreementsshould be submitted to the Court as far in advance as possible. Adjournments granted with consent ofparties, subject to Court’s approval, by contacting secretary.2
HON. CATHERINE NUGENT-PANEPINTOTRIALS:Trial dates are considered to be “date certain”. Adjournments granted under certaincircumstances. All motions in limine should be made returnable prior to jury selection.Expert disclosure, without good cause shown, should be exchanged thirty (30) days before thecommencement date of trial. Any motions regarding the adequacy of expert disclosure should be madewithin ten (10) days of receipt of such disclosure.Jury selection begins at 9:30 a.m. on Tuesday, with trial to commence at 9:30 a.m. on Wednesdayor whichever date is agreed upon by the parties and Court.Marked pleadings, requests or charge, proposed verdict sheets and papers for motions in limineshould be submitted one (1) week prior to beginning of trial. Exceptions made, upon good cause shown.Conferences with Judge upon completion of jury selection. Proposed verdict sheets and requests tocharge, may be e-mailed in WordPerfect format, to Judge’s Law Clerk at kwolf@courts.state.ny.us orsecretary at kmccrack@courts.state.ny.us.Charge conference with the Judge after proof completed with results put on record upon request.Matrimonials:Referred to law clerk to hear and report on divorces on stipulation, contested economics, postdivorce arrears and post-divorce modifications. Judgments and findings of fact should be submitted onnotice to opposing counsel within four (4) weeks of prove-up or decision. If no objections to final papersare received after ten (10) days, submitted papers and/or Orders will be signed without further delay.Special Requirements on Policy Limits Cases:If a case with a value in excess of the policy limits is being settled for available insurancecoverage, be prepared to submit an affidavit from the insured’s detailing their knowledge of insurancecoverage; an affidavit from counsel offering the policy limits detailing their activities in ascertaining theexistence of all available insurance coverage, and an affidavit from a principal with the insurancecompany swearing they have no knowledge of any other insurance coverage.20163
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HON. TIMOTHY J. WALKER, J.C.C.Acting Supreme Court JusticeE-Mail: tjwalker@nycourts.govPart 22 - Fourth Floor25 Delaware AvenueBuffalo, New York 14202PHONE: 716-845-7479FAX: 716-845-7505Law Clerk:Darryl J. Colosi, Esq.(716) 845-7480E-Mail: dcolosi@nycourts.govSecretary:Christine D. Paz(716) 845-7479E-Mail: cpaz@nycourts.govCourt Clerk:John H. Garbo, Jr.(716) 845-9415E-Mail: jgarbo@nycourts.govCourt Reporter:Lynn Dulak(716) 845-2139E- Mail: ldulak@nycourts.govMOTIONS:Generally every 3rd and 4th Wednesday - Morning sessioncommencing at 9:30 a.m.; Afternoon session commencingat 2:00 p.m.;Generally every 1st and 2nd Wednesday - Afternoon session only.Attorneys shall contact John Garbo prior to scheduling same.1.Hard copies of all moving and opposing submissions for consideration by theCourt (other than those relating to Orders to Show Cause - see below), shall be received byChambers at least three (3) business days prior to the return date, and before 2:00 p.m. Hardcopies of reply submissions if any, must be received by Chambers at least one (1) business dayprior to the return date, and before 2:00 p.m., and shall not re-iterate previous submissions.Cross-motions shall be governed by the CPLR, and the Court requires strict compliance withCPLR §2214(b). Except for applications for Orders to Show Cause, the originals of allsubmissions shall be filed with the office of the clerk of the county in which the matter iscommenced/pending. Oral argument is expected on all cases, unless a) the motion is known inadvance to be uncontested or b) a letter requesting the motion be decided on the papers isreceived by the Court prior to the original return date. Discovery motions shall be subject to aconference with the Law Clerk prior to filing the motion. In such case, counsel shall email theLaw Clerk, copying opposing counsel, and briefly set forth the discovery-related dispute.Opposing counsel shall have a reasonable opportunity to email a brief response, after which theLaw Clerk will determine whether a conference, or motion practice is required.5
2.Motions shall be called in the order in which attorneys check in with the CourtClerk. Please report in immediately upon arrival.3.Matters shall not be scheduled until Chambers receives a paid, stamped RJIand/or E-filing notification showing the original papers were filed with the office of theclerk of the county in which the matter is commenced/pending, and the appropriate filingfee has been paid.ORDERS:Shall be submitted to Chambers by the prevailing party’s counsel within ten (10) businessdays of a decision as to same, together with verification that the order has been served upon allopposing counsel (or pro se litigants), and that no objection has been received within three (3)business days of service. Orders will not be signed without said verification.CONFERENCES:Conferences shall be automatically scheduled upon Chambers’ receipt of a filed RJI orcalendar note of issue. Conferences may also be scheduled upon request. Prior to a preliminaryconference, counsel shall provide Chambers with copies of all pleadings and a one (1) paragraphsummary of the case. At the conference, a scheduling order shall be issued after consultationwith, and agreement among counsel, which shall include jury selection and trial dates. Counselshall bring calendars, including trial availability, to all conferences. Conferences shall take placewith the Law Clerk (or the Court, as matters dictate).TRIALS:The Court adheres strictly to jury selection and trial schedules. Marked pleadings (pleasecontact Lynn Dulak to arrange for same), requests to charge, witness lists, and proposed verdictsheets shall be submitted to Chambers (after consultation with opposing counsel, so as to narrowissues and limit redundancy) two (2) weeks prior to commencement of jury selection. Motions inlimine shall be filed and served so as to be heard prior to commencement of jury selection. Afinal charging conference shall be held prior to summations. Deadline for expert disclosure,absent good cause shown, is thirty (30) days prior to the scheduled commencement date of juryselection.GENERAL RULES:ADJOURNMENTS:1.No same day adjournments shall be permitted, except in extraordinarycircumstances, and only upon Court approval.26
2.Matters shall not be adjourned generally. The first and second adjournments maybe obtained without Court permission, on consent of all counsel, by informingChambers at least twenty-four (24) hours prior to the return date. Lettersconfirming adjournments, and re-scheduled return dates shall be provided toall counsel and Chambers by counsel requesting the adjournment.3.Conference adjournments shall be granted only with consent of all attorneys, andremain subject to Court approval.TROs:Shall be issued on a case-by-case basis, and shall be on notice to opposing counsel, ifknown. TROs in cases assigned to another Judge shall be granted only upon approval by thatJudge or his/her Law Clerk.DISCONTINUANCE:In any discontinued action, the attorney for the defendant shall file a stipulation orstatement of discontinuance with the appropriate county clerk within twenty (20) days of suchdiscontinuance, and shall provide Chambers with a date-stamped copy of same. If the action hasbeen noticed for judicial activity within twenty (20) days of such discontinuance, the stipulationor statement shall be filed before the date scheduled for such activity.37
HON. DENNIS E. WARD25 Delaware Ave. - 4th floor - Part 23Buffalo, New York 14202FAX: (716) 845-7592E-Mail: ourts.govLAW CLERK:DEBRA A. NORTON, ESQ.(716) 845-2108SECRETARY:CYNTHIA J. SELDEN(716) 845-2107COURT CLERK:MARY JO GANG(716) 845-9413SUZANNE MAXWELL BARNES, ESQ.KATHLEEN M. CROWLEY, ESQ.JUDITH SAMBER, ESQ.DONNA CASTIGLIONE, ESQ.JAYA MADHAVEN, ESQ.(716) 845-3628(716) 845-7448(716) 845-7463(716) 845-2758(716) 845-2727JANET MARCHINDA(716) 845-2727COURT ATTORNEYREFEREES:EXPEDITEDMATRIMONIALS:PRELIMINARY CONFERENCES:Preliminary conferences will be scheduled within 45 days of the filing of an RJI, asrequired by 22 NYCRR §202.12(b). Conferences will be scheduled with a Court AttorneyReferee in Expedited Matrimonials, on the 5th floor of 25 Delaware Ave., Buffalo, NY 14202.For such conference, each party shall submit to the Court the following:1.A completed DRL 236B financial affidavit as set forth in 22 NYCRR §202.16(b);2.A copy of the most recently filed income tax returns;3.Proof of the party’s most recent income;4.A completed Preliminary Matrimonial Information Sheet (which is mailed to theparties in their notice of first Expedited Matrimonial conference date and is alsoavailable on the 8th Judicial District website);5.An executed written Retainer Agreement and Statement of Client’s Rights andResponsibilities;6.A copy of the Summons with Notice, together with Affidavit of Service.18
Counsel and/or parties will be expected to provide to the court and opposingcounsel/party, no later than the second court conference:7.Copy of the party’s lifetime Social Security earnings statement;8.The Plaintiff’s Verified Complaint, including relief being sought;9.The Defendant’s Verified Answer (and counterclaim, if desired), including therelief being sought.The Preliminary Conference Order will set forth, if applicable, an amount of temporarychild support and temporary spousal maintenance as recommended by the Court AttorneyReferee and as stipulated to by the parties.When one or both of the parties are continuing to reside in the marital residence, and thecosts of same are to be paid by one or both spouses, the parties must then complete the “MonthlyExpense Sheet Addendum”, which will also be attached as an addendum to the PreliminaryConference Order. In the event that no stipulation as to temporary payments can be agreed upon,the Court will entertain motion practice, including an application for motion costs and counselfees, if it is determined consent was unreasonably withheld during the Preliminary Conference.MOTIONS:Motions may be made returnable on any business day by appointment, beginning at 9:30a.m. Please contact the Court Clerk for exact dates and times prior to scheduling motions.Allow one hour for motions, especially on newly filed cases. Orders to show cause are notrequired where the motion is served upon at least 8 days notice, as set forth in CPLR 2214.Please note that temporary injunctive relief will not be granted in the absence of priornotice to the opposing counsel or party, as required by 22 NYCRR §202.7(f), unless the movingparty can demonstrate significant prejudice from providing such notice. Live testimony of themoving party may be required prior to signing an order to show cause containing temporaryinjunctive relief.Motions to resolve discovery disputes shall be accompanied by an affidavit of good faithattempt at resolution. The Court is available to assist parties in resolving discovery issues,without resort to motion practice, by scheduling an informal “Discovery Oversight Conference”(DOC). Counsel should communicate with opposing counsel to select a mutually agreeable dateand time to meet in Part 23 and then schedule a conference through Chambers.ATTORNEY FOR CHILDREN APPOINTMENTS and PARENTING PLANS:The Court encourages the appointment of an Attorney for Child(ren) (AFC) in casesinvolving minor children, where access is unresolved. Orders pertaining to issues of custody andaccess should be drawn by the AFC and circulated to the parties for review. Additionally, the29
AFC will be asked to draft a final Parenting Plan concerning a final custody/access agreementand to work with the parties to have the custody/access portion of the case resolved as soon aspossible.SETTLEMENT CONFERENCES & TRIALS:Cases that appear appropriate for expedited resolution will be scheduled for trial in theExpedited Part. Trial dates are firm and adjournments are granted only in exceptionalcircumstances. The availability of the parties for the trial date must be confirmed by theattorneys when the trial date is set.Prior to trial, the parties will be afforded the opportunity for a Settlement Conference, theobjective of which is to reach a fully executed agreement signed by the parties on that day.Counsel must therefore come to the conference with clients and with a written settlementagreement that was previously circulated to opposing counsel for review with the client. Counseland parties should allow two hours for the Settlement Conference.If there is no signed agreement prior to the date for trial, then counsel must supply aStatement of Proposed Disposition pursuant to 22 NYCRR §202.16(h). Parties are asked tofollow the outline supplied by the Court. The Proposed Disposition is due one week prior totrial. At the start of the trial, the Court will ask the parties to place on the record any subjects onwhich they have reached agreement, and to delineate those issues remaining for judicialresolution. Parties are encouraged to sign a partial agreement in such cases.Exhibits for trial must be marked by the court reporter prior to the start of trial and listedon a form supplied by the court. Counsel must supply one copy for each attorney and one for thecourt. For lengthy exhibits, only the particular pages at issue need be copied. The Court will askthe parties to stipulate all exhibits into evidence at the start of trial. Parties are encouraged tostipulate to as many facts as possible in order to expedite the proof. In addition, parties areencouraged to stipulate to summaries or charts of agreed-upon issues, in lieu of bulky documents.It is the Court’s general policy that there shall be no expert witnesses called on the firstday of trial. Counsel are reminded of the requirements as to expert witnesses and their reports, asprovided in Court Rule 22 NYCRR §202.16(g).At the conclusion of the testimony, the parties will be asked to supply a Post-TrialSubmission, to summarize the items to be judicially determined and to summarize the reasonssupporting each party’s position on those items. The Court encourages the parties to resolveissues concerning attorney fees. Where Quantum Meruit applications are made, the parties mustindicate in advance whether they have stipulated to have such applications decided on papersonly, without a hearing on that issue.310
APPEARANCES AND ADJOURNMENTS:Parties must be personally present for the settlement conference, trials and such othercourt dates as the court shall direct. If a party cannot be present at any such required appearance,counsel for such party will immediately notify opposing counsel so the opposing party is onnotice before the appearance.Minor children are not to be brought to the courthouse absent a direction of the courtrequiring their presence.Short adjournments of motions or report back conferences may be obtained based uponconsent of opposing counsel, by contacting Chambers or Expedited Matrimonials, depending onwhere the conference is scheduled. If consent is denied, the Court has a liberal adjournmentpolicy for motions, especially when made on minimum notice, unless the relief sought isemergency in nature. Counsel should keep in mind the Standards of Civility (22 NYCRR §1200,Appendix A). Motions must be adjourned to a specific date and must include notice to theAttorney for Children, if applicable. Trial dates are firm and adjournments are rarely granted.SUBMIT OR APPEAR DATES:When counsel believe they have reached agreement in principle, the next appearance maybe to “submit or appear”. The signature page of the agreement should be faxed to Chambersprior to the submit date. If the agreement is not forthcoming, the Court may set a mandatoryappearance by clients or may schedule a trial, if it appears the parties are unable to reachresolution.ORDERS:All orders and other papers for signature (except orders to show cause) must first becirculated to opposing counsel or pro se party for comment and approval. Orders and judgmentswill not be signed without proof that opposing counsel or the pro se party had the opportunity toreview them. Proof of opposing counsel’s consent by letter or e-mail is preferred.JUDGMENT OF DIVORCE PAPERS:Once the parties have submitted a signed settlement agreement resolving all issues in thecase, the parties are granted 30 days to submit the remaining judgment of divorce papers, whichare reviewed by the Court Attorney Referees. Due to a heavy influx of such papers at the end ofeach year, counsel are asked to be mindful of the deadlines noted for such submissions.411
HENRY J. NOWAK, J.S.C50 Delaware Avenue8th Floor, Part 28Buffalo, New York 14202Ph: (716) 845-9477Fax: (716) 845-7541Law Clerk:Secretary:Court Clerk:John A. Ziegler, Esq.Sara MazgajElaine Xenos(716) 845-9478(716) 845-9477(716) xenos@nycourts.govMOTIONSEvery Thursday, beginning at 9:30 am. Upon request or at the court’sdiscretion, motions that require extensive oral argument may be scheduledat a later time.The court will permit multiple attorneys to argue different points for eachparty. Such practice is encouraged when multiple attorneys researched andbriefed various issues. Appearance on motions by telephone will not bepermitted.All oral decisions by the court are recorded. Oral argument is recorded asa matter of course only if there is an appearance by one or more selfrepresented litigants. In cases where all parties appear by counsel, oralargument will be recorded only upon prior stipulation by counsel that thetranscript of the argument will be requested and included in any record onappeal.MOTION PAPERS All papers shall be e-filed three days before the return date, with hardcopies (less exhibits) due by noon at least two days before the return date.The purpose of these time limitations is to allow the court to fully reviewall papers prior to oral argument. Counsel who are unable to comply withthese time limitations should request a telephone conference to set abriefing schedule.On e-filed cases, parties shall provide chambers with hard copies ofnotices of motion, affidavits, and memoranda of law. Hard copies of efiled exhibits are not necessary, but parties may provide a hard copy of acritical exhibit or excerpt of an exhibit. Do not send any motion papers byfax. Binding of papers is discouraged.ADJOURNMENTS Requests for adjournments must be made at least one business day beforethe scheduled appearance. Motions must be adjourned to a specific dateand will not be generally adjourned. All requests for adjournments mustPage 1 of 212
be approved by the court, and only after consent is sought from opposingcounsel. Any party or attorney refusing to consent to an adjournment mustdemonstrate a sound basis for that refusal. Upon receiving anadjournment, the requesting party the must send e-mail confirmation of theadjournment and the rescheduled date to all parties and the court.ORDERSProposed orders are to be provided to all attorneys and self-representedlitigants at least five days before submission to the court for signature.The court will entertain requests to shorten the five day requirement ifcircumstances warrant. Any objection to a proposed order shall be settledpursuant to Uniform Rules for the New York State Trial Courts § 202.48.DEADLINESBEFORE TRIALExpert disclosure shall be made thirty days before trial, absent goodcause shown. One week before jury selection, marked pleadings, requeststo charge, witness lists and proposed verdict sheets shall be submitted tochambers. Motions in limine shall be filed and served so as to be heardbefore commencement of jury selection.COMMERCIALACTIONSApplicability of Rules of Practice for the Commercial DivisionExcept as otherwise stated herein, all commercial actions are subject to therules of practice set forth in Uniform Rules for the New York State TrialCourts § 202.70 (g), including Rule 13 (c) concerning expert disclosure.Requests for Temporary Restraining OrdersAll requests for TRO’s must be made on notice to opposing counsel ifknown. TRO’s for other Justices will be signed only with approval of thatJustice or Justice’s Law Clerk.Preliminary ConferencesA preliminary conference will be scheduled upon receipt of a filed RJI andverification by the court that the case meets the jurisdictional requirementsfor the Commercial Division. At least one day before the conference,counsel shall provide chambers with a one paragraph summary of the case,preferably by e-mail to Sara Mazgaj at smazgaj@nycourts.gov. At theconference, counsel and self-represented litigants should be prepared todiscuss appropriate deadlines and their availability for future appearances,as well as any objection to mediation or other methods of alternativedispute resolution.ADDITIONALRULESPlease be advised that the court utilizes specific written procedures forsummary jury trials and motions to withdraw as counsel. Request suchprocedures when appropriate.Page 2 of 213
McKinney's CPLR § 3126§ 3126. Penalties for refusal to comply with order or to discloseIf any party, or a person who at the time a deposition is taken or an examination or inspection ismade is an officer, director, member, employee or agent of a party or otherwise under a party'scontrol, refuses to obey an order for disclosure or wilfully fails to disclose information which thecourt finds ought to have been disclosed pursuant to this article, the court may make such orderswith regard to the failure or refusal as are just, among them:1. an order that the issues to which the information is relevant shall be deemed resolved forpurposes of the action in accordance with the claims of the party obtaining the order; or2. an order prohibiting the disobedient party from supporting or opposing designated claims ordefenses, from producing in evidence designated things or items of testimony, or fromintroducing any evidence of the physical, mental or blood condition sought to be determined, orfrom using certain witnesses; or3. an order striking out pleadings or parts thereof, or staying further proceedings until the order isobeyed, or dismissing the action or any part thereof, or rendering a judgment by default againstthe disobedient party.Credits(L.1962, c. 308. Amended L.1978, c. 42, § 1; L.1993, c. 98, § 11.)Editors' Notes14
SUPPLEMENTARY PRACTICE COMMENTARIESby Patrick M. Connors2017C3126:8 Which Sanction to Impose?Defendants Precluded from Introducing Facebook Printouts Unless Person Who Procured ThemIs Produced for a DepositionThe decision in Lantigua v Goldstein, 149 A.D.3d 1057, 53 N.Y.S.3d 163 (2d Dep't 2017),addressed a disclosure dispute in a medical malpractice action in which plaintiff was confrontedat his deposition with printouts of 13 pages that allegedly were from his Facebook account. Theprintouts depicted a gentleman of many pursuits who “allegedly talked about going out to a bar,having a great workout, and crossing the Williamsburg Bridge three times.” The plaintiffacknowledged that he had used a Facebook account, but denied that the printouts were from hisaccount and denied making the statements.The plaintiff then served disclosure requests of his own, seeking information about the individualwho obtained the print
92 Franklin Street, Part 2, 3rd Floor Buffalo, New York 14202 Phone: 845-2693 / Facsimile: MOTION PAPERS VIA FACSIMILE OR EMAIL BY PRIOR ARRANGEMENT WITH COURT AND COUNSEL Law Clerk: Kristen M. Wolf 716-845-2597 Secretary: Kristin J. McCracken 716-845-2693 Court Clerk: Sally Lemley 716-845-9427 MOTIONS:
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