Motion to Compel Disclosure in New York

What Is a Motion to Compel Disclosure?

Background

“If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order… the party seeking disclosure may move to compel compliance or a response.” (Civ. Prac. Law & Rules, § 3124.)

How to Structure the Motion

Parties are required to provide “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” (Civ. Prac. Law & Rules, § 3101(a).) Courts have liberally interpreted the “material and necessary” standard “to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” (Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968].)

Response

A party who wishes to oppose a discovery request must object within 20 days or those objections are waived except as to privilege or demands which are palpably improper. (Saratoga Harness Racing, Inc. v. Roemer, 274 A.D.2d 887, 888 [3rd Dept. 2000].)

The right to disclosure, although broad, is not unlimited, as Section 3101 of Civil Practice Law and rules “establishes three categories of protected materials.” (Civ. Prac. Law & Rules, § 3101.) These categories include, privileged matter (absolutely immune from discovery), attorney’s work product (absolutely immune from discovery), and trial preparation materials (subject to disclosure on a showing of substantial need and undue hardship). (Id.; Spectrum Systems Intern. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 [1991].) The burden of establishing a right to protection under these provisions is with the party asserting it; the “protection claimed must be narrowly construed” and “its application must be consistent with the purpose underlying the immunity.” (Id.)

The Court’s Decision

Motions to compel disclosure are generally granted where a party has unreasonably refused to comply. (Fugazy v. Time, Inc. 24 A.D.2d 443 [1965]; Mihaly v. Mahoney, 126 A.D.2d 791 [3rd Dept. 1987].) However, “litigants are not without protection against unnecessarily onerous application of the disclosure statutes. Under our discovery statutes and case law competing interests must always be balanced; the need for discovery must be weighed against any special burden borne by the opposing party.” (Kavanaugh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954 [1998].)

The nature and degree of the penalty to be imposed for failure to disclose is generally left to the discretion of the court. (Kingsley v. Kantor, 265 A.D.2d 529, 697 N.Y.S.2d 141 [2nd Dept. 1999].) It is well-settled that the court may strike a pleading where a party’s failure to provide disclosure is willful and contumacious. (Civ. Prac. Law & Rules, § 3126; Rizzuti v. Laucella, 57 A.D.3d 755, 757, 871 N.Y.S.2d 202, 204 [2nd Dept. 2008].) It has been held that a party’s continued pattern of failing to respond to discovery demands and comply with court orders creates an inference of willful and contumacious conduct warranting a dismissal of the complaint. (Sosa v. Tudor Place Assoc., L.P., 55 A.D.3d 311, 312, 865 N.Y.S.2d 57 [1st Dept. 2008]; VanNostrand Jones v. Green, 34 A.D.3d 260, 261, 825 N.Y.S.3d 466 [1st Dept. 2008]; Goldstein v. CIBC World Markets Corp., 30 A.D.3d 217, 817 N.Y.S.3d 19 [1st Dept. 2006].)

Monetary Awards

Section 3126 of Civil Practice Law and Rules, which should be read in conjunction with Section 3124, authorizes the imposition of penalties or sanctions for the failure to comply with disclosure in certain instances. (Pierre v. Delish Bakery & Rest., 294 A.D.2d 417 [2nd Dept. 2002].)

Timeline

It is required that disclosure requests be responded to at a specified time, which must be at least 20 days from service of the request. (Civ. Prac. Law & Rules, § 3120(2).)

Documents for Motion to Compel Disclosure in New York

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Regina Vazquez v. John Alejandro Ortiz, John Doe (name is unknown to plaintiff and said fictitious name is intended to designate the operator of a vehicle owned by John Alejandro Ortiz on 3/5/22 at approximately 6:44 p.m. at or about W. Mount Eden Avenue & Jerome Avenue, Bronx, NY), Rasier-Ny, Llc, Uber Technologies, Inc., Uber Usa, Llc document preview

EXHIBIT(S) - H - All Defendants Answers to Plaintiffs Complaint

36 pages

FILED: BRONX COUNTY CLERK 05/10/2024 12:15 PM INDEX NO. 810826/2022E NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/10/2024 EXHIBIT H FILED: BRONX COUNTY CLERK 05/10/2024 12/08/2022 12:15 12:46 PM INDEX NO. 810826/2022E NYSCEF DOC. NO. 32 10 RECEIVED …

Case Name Regina Vazquez v. John Alejandro Ortiz, John Doe (name is unknown to plain…