CPLR 3126 conditional orders requiring disclosure "can't get no respect".

• Author: Connors, Patrick M.
• Position: New York Civil Practice Law and Rules

Any person reading this piece who reached the age of majority by 1980 surely remembers the great Rodney Dangerfield, with eyes bulging and legs shuffling, constantly tugging on his trademark red tie. He worked as a singing waiter, but was fired. He gave up show business for a career as an aluminum siding salesman. He accomplished so little in the trade that, after he quit, he recounted that he was the only one who knew he quit.

He eventually gave show business another try in the 1960s and became a huge success. Remember the one he told about the doctor who slapped his face when he was born? Then there was his old man, who never took him to the zoo. He told Rodney: "If they want you, they'll come and get you." Then there was his wife. When he told her that they needed a home improvement loan, she offered $1,000 and told him to move out.

As Mr. Dangerfield would surely agree, he got no respect!

Sadly, in the realm of New York civil procedure, the same can be said of conditional orders requiring disclosure. They've been issued in the New York State court system on countless occasions for the last half-century, even before the enactment of the CPLR, to help light a fire under a party who has refused to provide disclosure or a bill of particulars. The conditional order's aim is to provide the recalcitrant party with one last chance to supply the requested disclosure and allow the case to proceed on the merits before penalties, such as the striking of a pleading or preclusion, are imposed. Too often, however, the New York State courts allow serial delay to persist even after the issuance of a conditional order and open up the doors to permit a party who has failed to comply with the order's terms an additional opportunity to set things right.

In Kihl v. Pfeffer, writing for a unanimous Court, former Chief Judge Judith Kaye declared that "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint." (1) She went on to observe that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity." (2) Although these principles have since been repeated by the Court of Appeals in several important decisions that, read together, constitute as a crusade against sloppy practice, (3) New York courts still frequently forgive a party's failure to comply with a conditional order. As demonstrated below, this culture of leniency regarding the enforcement of conditional orders foments needless motion practice and causes prolonged delay in the prosecution of actions.

Despite the willingness of New York courts to forgive a party's failure to comply with a conditional order requiring disclosure, the grounds cited to support the relief, i.e., a reasonable excuse for the delay and an affidavit of merit of the claim or defense, have never been addressed by the Court of Appeals in any significant detail. Moreover, there is scant statutory support for granting relief on these grounds to parties who have failed to comply with the terms of a conditional order.

This article examines the events in litigation that typically result in a CPLR 3126 conditional order requiring disclosure, which require the expenditure of substantial time and expense for the parties and the court system. We then turn to recent decisions in which conditional orders have issued and examine the propriety and effect of those orders. The piece then discusses several established remedies available under the CPLR to a party subject to a CPLR 3126 conditional order. These broad remedies cast further doubt on the utility of the doctrine invoked by several courts that allows a court to vacate or modify a conditional order based merely on a reasonable excuse and affidavit of merit.

The Court of Appeals will likely have another opportunity to clarify the effect of a CPLR 3126 conditional order in the near future. It is respectfully submitted that New York State courts should conduct a comprehensive examination of the case law that allows a party to excuse a failure to comply with a conditional order requiring disclosure and ascertain whether existing procedural devices adequately address the problem.

1. EVENTS LEADING UP TO A CPLR 3126 CONDITIONAL ORDER

   For a broader understanding of the serious nature of the problems in this area, it is important to trace the steps that traditionally lead up to the issuance of a conditional order. A conditional order is typically issued in a case in which a party seeks disclosure (4) or a bill of particulars. (5) While there are a myriad of avenues that can lead to the issuance of a conditional order, in the space below we will track the path leading up to the issuance of a conditional order after a party serves a request for production of documents. For purposes of this example, we will assume that the party seeking the disclosure never receives a response from the party in possession of the information, a scenario that occurs too frequently in New York State courts. (6)

   1. Service of Disclosure Demand and Mandatory Good Faith Effort to Resolve Dispute

      CPLR 3120(1)(i) provides one of the most popular disclosure devices in New York civil practice. It allows a party to an action to serve a notice on any other party (7) seeking, among other things, the production of documents "which are in the possession, custody or control of the party or person served." (8) The party served with a CPLR 3120 notice has twenty days to provide the requested documents and any objections to the disclosure sought. (9) If, for any reason, the recipient of the notice wishes to withhold a document that appears to be within the category of documents demanded by the other side, the recipient must serve a response on the seeking party reciting the fact that one or more of the documents sought are being withheld and setting forth the reasons that purport to justify the withholding. (10)

      If the recipient of the demand fails to provide a timely response, the party seeking the documents cannot immediately request the court to intervene. (11) Uniform Rule 202.7(a), applicable in supreme and county court actions, requires that any "motion relating to disclosure or to a bill of particulars [be accompanied by] an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." (12) This affirmation must be detailed and include "the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held." (13)

   2. CPLR 3124 Motion to Compel Compliance with Disclosure Demand

      If the required consultation does not resolve the dispute, the party who served the request for documents can now make a motion under CPLR 3124 (14) seeking an order from the court compelling the production. Assuming the adversary has refused to produce relevant documents, which are not otherwise privileged or protected as work product, (15) that motion will usually result in an order requiring the production of the documents by a certain date, usually within thirty to sixty days from service of the order. The prevailing party on the motion must serve the order with notice of entry to give effect to the order. (16)

   3. CPLR 3126 Motion for Penalties and Resulting Conditional Order

      If, after service of the CPLR 3124 order compelling production, the documents are still not produced within the time prescribed by the court, the party seeking disclosure will now be entitled to move for penalties and sanctions under CPLR 3126. (17) While there is some debate on whether a party seeking disclosure can move for penalties and sanctions under CPLR 3126 in the first instance without initially moving under CPLR 3124, (18) there is no doubt that the party who has obtained an order under CPLR 3124 can move under CPLR 3126 if the opposing party "refuses to obey [the] order." (19) A party moving under CPLR 3126 will likely need to accompany the motion with another affidavit of good faith effort to resolve the dispute as this motion also relates to disclosure. (20)

      The party moving under CPLR 3126 will frequently request that the recalcitrant party's pleading be stricken. This drastic relief is authorized by CPLR 3126(3), (21) but will only be invoked where "the party's failure to comply with a disclosure order was the result of willful and contumacious conduct." (22) If disclosure has not been produced after a CPLR 3124 order requiring the production, and the recalcitrant party has offered no legitimate excuse, the striking of that party's pleading may be appropriate under CPLR 3126. (23) It must be noted, however, that New York courts have repeatedly expressed the "strong preference in our law that actions be decided on their merits" and are therefore hesitant to "resort to the drastic remedy of striking a pleading for failure to comply with discovery directives unless the noncompliance is established to be both deliberate and contumacious." (24)

      Surprisingly, the most common CPLR 3126 order in situations involving repeated and deliberate noncompliance with disclosure is not an order striking a pleading outright, but rather a conditional order giving the recalcitrant party one more chance to make things right. (25) A conditional order is usually "self-executing," meaning that it grants the motion and imposes the sanction unless within a specified time the resisting party complies with the disclosure order.

      The new time period, set by the court in the order disposing of the 3126 motion, will usually run from the time a copy of the order is served on the recalcitrant party with notice of its entry. The order may itself set the time and place of the disclosure, or simply supply only an outside date for compliance by the...