Wednesday, March 21, 2007

What showing must you make in order to win your motion to strike a pleading?

The statute is CPLR 3126 and the magic words are "willful and contumacious," as applied to the other side's failure to comply with your discovery demands. In Bjorke v. Rubenstein, decided by the Second Department on March 13, 2007, there was a second procedural matter in play, namely, a motion to dismiss the complaint based on the alleged spoilation of evidence. This motion may be granted in the absence of willful and contumacious conduct, if, but only if, you show that the evidence was necessary to your being able to mount a defense.