We all know how frustrating it can be to contend with the dilatory tactics of a recalcitrant adversary who fails to comply with discovery. We have all been down the road of letter-writing campaigns to establish a basis for our “good faith” affirmations to support the inevitable motion for sanctions under CPLR 3126. Of course, it does not take a magic eight ball to tell you that no pleading will be stricken on the first request. You must show that your adversary’s non-compliance was the product of willful and contumacious behavior, and that usually requires more than one motion. Instead, on the first go-round, you are likely to receive an order directing the delinquent party to provide the outstanding discovery by a date certain.

Unfortunately, in altogether too many situations, the recalcitrant litigant will ignore that “date certain,” compelling you to begin yet another letter-writing campaign to show your “good faith” before you are compelled to make yet another motion to strike your adversary’s pleading pursuant to CPLR 3126 based upon his willful non-compliance with discovery. We all know how this turns out… the court will issue another order directing the neglectful litigant to provide the outstanding discovery by a “date certain” and, in all likelihood, this process will be repeated over and over again, leaving those litigants who actually comply with discovery to wonder whether court orders actually mean anything anymore. When the Court of Appeals decided Gibbs v. St. Barnabas Hospital, we were reminded that they do.1

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