In personal injury litigation, timely compliance with discovery requests is critical. Under New York’s C.P.L.R. §3126, a court may issue a conditional order of preclusion, requiring a party to produce requested materials by a date certain or face the consequence of being barred from offering evidence at trial. The recent decision in Alson v. New York City Transit Authority, 242 A.D.3d 1047(App. Div. 2d Dept’ 2025) underscores the strict enforcement of this rule.

The case arose from a personal injury action in which the plaintiff alleged he tripped and fell on a defective sidewalk adjacent to property owned by the New York City Transit Authority (NYCTA) and other defendants. The plaintiff requested materials referenced during the deposition of a Metropolitan Transportation Authority employee. Despite repeated demands, NYCTA failed to produce the materials. In response, the Supreme Court, Kings County, issued a conditional order of preclusion on February 1, 2023, directing NYCTA to produce the materials by a specified date or face preclusion from presenting evidence at trial. When NYCTA failed to comply by the deadline, the plaintiff moved to make the preclusion absolute.

The court granted the motion on September 8, 2023, barring NYCTA from offering evidence or testifying. NYCTA subsequently moved to vacate or modify the order, but the court denied that motion on June 3, 2024. NYCTA appealed both orders, arguing, in part, that its delay was due to law office failure and that preclusion was too harsh a sanction.

The Appellate Division affirmed both orders. The court explained that a conditional order of preclusion becomes absolute once a party fails to comply by the deadline, regardless of whether the failure was willful. While courts may excuse law office failure if supported by a credible explanation, defaults resulting from repeated neglect or vague, unsubstantiated claims of law office error cannot be excused. Here, NYCTA produced the materials 16 months after the initial request and three months after the court-ordered deadline—far beyond any reasonable excuse. Because NYCTA failed to justify its delay, the court did not need to consider whether it had a potentially meritorious defense to the underlying action.

This decision reinforces that conditional orders of preclusion are not merely advisory; compliance is mandatory. Parties who fail to adhere strictly to discovery deadlines risk losing the ability to present evidence, regardless of the merits of their case. The ruling serves as a cautionary tale for litigants and law firms alike: diligence and timely compliance with discovery obligations are essential to avoid severe sanctions.

Giulia R. Marino, Esq.