What did the court decide?

The appeals court affirmed the trial court's denial of the plaintiff's request to strike the defendants' answer or bar their defenses for failing to produce discovery; instead the court required the defendants to turn over the requested material by a new deadline.

Who is affected by this decision?

The plaintiff and defendants in this personal injury case are directly affected; the defendants must produce the previously requested discovery materials by the new deadline.

Why didn't the court strike the defendants' answer?

Because the record did not show the defendants acted willfully and contumaciously in failing to comply with discovery orders, and striking an answer is an extreme sanction reserved for clear, repeated, or unjustified noncompliance.

What happens next in the case?

The defendants must produce the demanded discovery by the court-ordered date, after which the case will proceed and the parties can use that material in further litigation and motion practice.

Can this decision be appealed again?

Potentially, if there are further adverse rulings or final judgment, the parties may seek further appellate review, but this particular affirmance resolves the specific discovery-sanction dispute at this level.

Kirby v. Philbert

Docket 2024-07421

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 22, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02397
Docket: 2024-07421

Appeal from an order denying a CPLR 3124 and 3126 motion to strike the defendants' answer or impose discovery sanctions in a personal injury action

Summary

The Appellate Division, Second Department affirmed a trial court order denying the plaintiff’s motion to strike the defendants’ answer, preclude their defenses, or resolve liability in the plaintiff’s favor for failure to produce court-ordered discovery in a personal injury action. The Supreme Court had found no clear showing that the defendants’ discovery lapses were willful and contumacious and instead extended a deadline for production. The appellate court held that the trial court did not abuse its broad discretion under disclosure and sanction rules and therefore affirmed the denial of the extreme sanctions sought by the plaintiff.

Issues Decided

Whether the trial court abused its discretion in denying the plaintiff's motion to strike the defendants' answer under CPLR 3124 and 3126 for failure to comply with discovery orders
Whether the defendants' failure to produce court-ordered discovery was willful and contumacious such that drastic sanctions were warranted

Court's Reasoning

The court emphasized that trial courts have broad discretion over disclosure sanctions and that drastic remedies like striking a pleading require a clear showing of willful and contumacious conduct. The record did not establish such conduct by the defendants — there was not a sufficient showing of repeated noncompliance without excuse or extended refusal to obey court orders. Because the extreme sanction was not justified, the trial court properly exercised its discretion by denying the motion and instead extending the deadline for production.

Authorities Cited

Perez v Tedesco214 AD3d 1010
Taglianetti v Bay Ridge Medical Imaging, P.C.229 AD3d 477
CPLR 3126

Parties

Appellant: Leon Anthony Kirby
Respondent: Nalston P. Philbert
Attorney: Law Offices of Patrick J. Mullaney, P.C. (Michael H. Zhu, Esq.)
Attorney: Giordano, Glaws & Fenstermacher, LLP (Kathryn M. Beer, of counsel)
Judge: Hector D. Lasalle, P.J.
Judge: Francesca E. Connolly
Judge: Lourdes M. Ventura
Judge: Elena Goldberg Velazquez

Key Dates

Decision date: 2026-04-22
Index number filing year: 2019-01-01
Compliance conference order: 2023-05-15
Deadline to respond to disclosure: 2023-06-24
Plaintiff's notice of motion: 2013-10-19
Supreme Court order denying motion: 2024-03-20
New production deadline set by Supreme Court: 2024-06-05

What You Should Do Next

1
Produce the ordered discovery
Defendants should comply with the Supreme Court's deadline and produce the demanded materials to avoid renewed or more severe sanctions.
2
Monitor compliance and document it
Plaintiff's counsel should confirm receipt of the discovery, preserve proof of any continued deficiencies, and be prepared to move again if production is incomplete.
3
Prepare for merits proceedings
Both parties should use the produced discovery to prepare for dispositive motions or trial, including updating witness lists, exhibits, and strategy.
4
Consider appellate options later
If a party believes a later adverse discovery ruling or final judgment is improper, they should consult counsel about the timing and grounds for any further appeal.

Frequently Asked Questions

What did the court decide?: The appeals court affirmed the trial court's denial of the plaintiff's request to strike the defendants' answer or bar their defenses for failing to produce discovery; instead the court required the defendants to turn over the requested material by a new deadline.
Who is affected by this decision?: The plaintiff and defendants in this personal injury case are directly affected; the defendants must produce the previously requested discovery materials by the new deadline.
Why didn't the court strike the defendants' answer?: Because the record did not show the defendants acted willfully and contumaciously in failing to comply with discovery orders, and striking an answer is an extreme sanction reserved for clear, repeated, or unjustified noncompliance.
What happens next in the case?: The defendants must produce the demanded discovery by the court-ordered date, after which the case will proceed and the parties can use that material in further litigation and motion practice.
Can this decision be appealed again?: Potentially, if there are further adverse rulings or final judgment, the parties may seek further appellate review, but this particular affirmance resolves the specific discovery-sanction dispute at this level.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Kirby v Philbert - 2026 NY Slip Op 02397

Kirby v Philbert

2026 NY Slip Op 02397

April 22, 2026

Appellate Division, Second Department

Leon Anthony Kirby, appellant,

Nalston P. Philbert, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 22, 2026

2024-07421, (Index No. 511401/19)

Hector D. Lasalle, P.J.

Francesca E. Connolly

Lourdes M. Ventura

Elena Goldberg Velazquez, JJ.

Law Offices of Patrick J. Mullaney, P.C. (Michael H. Zhu, Esq., P.C., Rego Park, NY, of counsel), for appellant.

Giordano, Glaws & Fenstermacher, LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Kathryn M. Beer], of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated March 20, 2024. The order, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 3124 and 3126 to strike the defendants' answer for failure to produce court-ordered discovery or, in the alternative, to preclude the defendants from supporting claims on defenses or to direct all liability issues resolved in favor of the plaintiff.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries. In a compliance conference order dated May 15, 2023, the defendants were directed to respond to the plaintiff's post-deposition demand for certain disclosure by June 24, 2023. By notice of motion dated October 19, 2013, the plaintiff moved pursuant to CPLR 3124 and 3126 to strike the defendants' answer for failure to produce the material demanded or, in the alternative, to preclude the defendants from supporting claims on defenses or to direct all liability issues resolved in favor of the plaintiff. In an order dated March 20, 2024, the Supreme Court denied the plaintiff's motion but directed the defendants to produce the material demanded on or before June 5, 2024. The plaintiff appeals.

"'The Supreme Court has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126'" (
Perez v Tedesco
, 214 AD3d 1010, 1011-1012, quoting
Sepulveda v 101 Woodruff Ave. Owner, LLC
, 166 AD3d 835, 836). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful and contumacious character of a party's conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time" (
Taglianetti v Bay Ridge Med.
Imaging, P.C.
, 229 AD3d 477, 478-479 [citations and internal quotation marks omitted]).

Here, there was no clear showing that the defendants' failure to comply with court-ordered discovery was willful and contumacious. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion, while extending the deadline for the defendants to produce the discovery demanded (
see

Javeed v 3619 Realty Corp.
, 129 AD3d 1029, 1033;
Iscowitz v County of Suffolk
, 54 AD3d 725;
Jenkins v City of New York
, 13 AD3d 342, 342-343).

LASALLE, P.J., CONNOLLY, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph