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Mendoza v. Highpoint Assocs. - IX, LLC, 2011 NY Slip Op 1719, 83 A.D.3d 1, 919 N.Y.S.2d 129 (App. Div.)

Rule:

Generally, a defendant's preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment. Indeed, a preclusion order does not relieve the plaintiff of the burden of proving its case; nor does it preclude affirmative defenses. Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant.

Facts:

Plaintiff Jose Mendoza brought this action for injuries sustained during a fall while he was on a roof to inspect damage and determine the extent of necessary repairs. Plaintiff asserts claims under Labor Law § 240 (1)§241 (6) and 200, and common-law negligence. During the discovery process, defendant building owner refused to produce an employee of the subject property for a deposition. As a result, the Supreme Court entered an order precluding defendant from introducing evidence at trial with respect to liability. Defendant appealed that order.

Defendant does not dispute that the Supreme Court appropriately exercised its discretion to fashion a remedy for its failure to comply with discovery demands. What defendant disputes is the Supreme Court's subsequent determination that the preclusion order ipso facto prevented it from making a motion for summary judgment on the ground that plaintiff would not be able to make a prima facie case on liability.

Issue:

Did the trial court's subsequent determination that the preclusion order ipso facto prevented defendant from making a motion for summary judgment on the ground that plaintiff would not be able to make a prima facie case on liability?

Answer:

No.

Conclusion:

Indeed, it cannot be seriously disputed that a preclusion order does not prevent a defendant from challenging a plaintiff's evidence at trial by moving for a directed verdict at the end of the plaintiff's case on the ground that the latter has failed to make a prima facie case. A motion for summary judgment is not the procedural equivalent of a trial. In fact, CPLR 3212(b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial. In each instance, the court is taking the case away from the factfinder by determining that there is nothing to try. Of course, the main difference is that on a summary judgment motion the judge is asked to decide the issue on papers alone while in a motion for a directed verdict, the judge has the advantage of hearing live testimony.

While the purpose of a preclusion order is to make the demanding party whole, whatever disadvantage plaintiff sustained as a result of defendant's failure to provide the required discovery was overcome when Supreme Court effectively prohibited defendant from offering its own affirmative evidence at trial on liability. To further preclude defendant from making a motion for summary judgment to challenge plaintiff's evidence--as a defendant can do at trial--would give plaintiff more relief than is warranted.

The appellate court held that the preclusion order did not constitute a procedural bar to the proper disposition of defendant's motion for summary judgment on the merits. To be sure, as plaintiff correctly points out, defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering its own affirmative evidence as to liability, either at trial or on the motion, regardless of the order's reference to "at trial." The result, otherwise, would perversely undermine the point of the order by allowing defendant to benefit from the shortcut of summary judgment by use of the same evidence that otherwise would have been barred at trial. Hence, for present purposes, all of defendant's affirmative evidence is precluded. 

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