Bryan Mori Servan v. ES Builders Group LLC, et al.
Attorneys and Parties
Brief Summary
New York civil procedure—discovery sanctions and good‑faith meet‑and‑confer requirements
The Supreme Court, Bronx County granted plaintiff's motion under CPLR 3126 [authorizes sanctions, including striking a pleading, for failure to disclose] to strike defendants' answer and scheduled an inquest on damages.
The order striking defendants' answer and directing an inquest on damages was unanimously reversed; the motion was denied without prejudice to renewal.
Plaintiff's counsel’s good‑faith affirmation did not comply with 22 NYCRR 202.20‑f(b) [requires an in‑person or telephonic conference and a detailed good‑faith effort to resolve discovery disputes before motion practice], offering only perfunctory statements and lacking specifics about communications. It also failed to meet the particulars contemplated by 22 NYCRR 202.7(a), (c).
Background
In a personal injury action, plaintiff sought to strike defendants' answer after defendants allegedly failed to appear for a deposition despite four court orders over two years. Plaintiff moved under CPLR 3126, submitting a good‑faith affirmation that asserted efforts to confirm the deposition but did not detail the method, participants, messages, or follow‑up of any communications.
Lower Court Decision
The Supreme Court, Bronx County granted plaintiff's CPLR 3126 motion, struck defendants' answer, and set an inquest on damages.
Appellate Division Reversal
The Appellate Division unanimously reversed, holding that plaintiff's good‑faith affirmation did not satisfy 22 NYCRR 202.20‑f(b) because it did not attest to an in‑person or telephonic conference and lacked necessary detail under 22 NYCRR 202.7(a), (c). The motion to strike was denied without prejudice to renewal. The Court did not reach whether defendants' conduct was willful and contumacious despite multiple order violations.
Legal Significance
The decision underscores that severe discovery sanctions will not be entertained unless the moving party strictly complies with the Uniform Rules' meet‑and‑confer and detailed good‑faith affirmation requirements. Perfunctory assertions of effort are insufficient.
Before seeking sanctions under CPLR 3126, counsel must comply with 22 NYCRR 202.20‑f(b) by conducting and documenting an in‑person or telephonic good‑faith conference and providing specific details of efforts; otherwise, even repeated noncompliance by the opposing party may not result in sanctions.