New York Motion to Compel Disclosure

Introduction

Key Things to Know

1. 1

   A New York motion to compel disclosure is brought under CPLR 3124, which has no subdivisions at all: the whole rule is one sentence reaching a person who fails to respond to or comply with any request, notice, interrogatory, demand, question or order under Article 31, except a notice to admit under section 3123. There is no separate provision for a total non-response and no different one for an inadequate answer, because the same sentence covers both failing to respond and failing to comply. New York also says disclosure where most states say discovery: Article 31 is headed Disclosure.

2. 2

   CPLR 3124 awards nothing to anybody, and that is the most important thing on this page. The rule contains no cost provision, no expense provision and no fee provision. The penalty section is separate and it is discretionary: CPLR 3126 provides that where a party refuses to obey an order for disclosure or wilfully fails to disclose information the court finds ought to have been disclosed, the court may make such orders with regard to the failure or refusal as are just, among them an order resolving the relevant issues against the disobedient party, a preclusion order, or an order striking pleadings, staying proceedings, dismissing, or rendering judgment by default. None of those three is money.

3. 3

   Costs on a motion exist in New York but they are small and discretionary. CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8202 then caps them: costs awarded on a motion shall be in an amount fixed by the court, not exceeding one hundred dollars. The one Article 31 provision that does shift attorney fees is attached to the device the motion to compel cannot reach, and it is brought at trial. CPLR 3123(c) lets a party who proves a matter after an unreasonable denial of a notice to admit move at or immediately following the trial for the reasonable expenses of making that proof, including reasonable attorney fees, and says the order shall be made irrespective of the result of the action unless there were good reasons for the denial or the admissions sought were of no substantial importance.

4. 4

   Two separate papers have to travel with a New York disclosure motion, and they come from different rules. Under 22 NYCRR 202.7(a), no motion shall be filed with the court unless there have been served and filed with the motion papers a notice of motion and, with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. 22 NYCRR 202.7(c) prescribes what that affirmation must indicate: the time, place and nature of the consultation, the issues discussed and any resolutions, or good cause why no such conferral was held. One citation note, because it is a common error: the discovery affirmation is 202.7(a)(2) with its contents at 202.7(c), not 202.7(f), which is about temporary injunctive relief.

5. 5

   A conversation is required, and on the rule's own words an email exchange is not one. 22 NYCRR 202.20-f(b) provides that absent exigent circumstances, prior to contacting the court about a disclosure dispute, counsel must first consult with one another in a good faith effort to resolve all disputes about disclosure, and that such consultation must take place by an in-person or telephonic conference. The motion must then be supported by an affidavit or affirmation attesting to that conference and setting out four specifics: the date, the time, the persons participating, and the length of time of the conference. Where the other side unreasonably refuses, the movant instead details the efforts made to obtain a conference and sets forth the responses received, and the refusal may be addressed by sanctions under Part 130. These uniform-rule wordings should be checked against the court system's own published text before filing.

6. 6

   Non-compliance with the conference rule has a stated consequence, which is rare. 22 NYCRR 202.20-f(c) provides that the failure of counsel to comply with the rule may result in the denial of a discovery motion, without prejudice to renewal once the rule has been complied with, or in the motion being held in abeyance until the informal resolution procedures of the court are conducted. Note also which court these rules reach: 22 NYCRR 202.1(a) says the Part applies to civil actions and proceedings in the Supreme Court and the County Court, so they are not the rules for the New York City Civil Court, the city, town and village courts or their small claims parts.

7. 7

   Twenty days is the New York number for all three written devices, and interrogatories are limited by combination rather than by count. CPLR 3133(a) gives twenty days after service of interrogatories to serve answers, with the reasons for any objection stated with reasonable particularity. CPLR 3122(a)(1) gives twenty days from service of a notice or subpoena duces tecum to serve a response stating with reasonable particularity the reasons for each objection. CPLR 3123(a) gives twenty days before a matter is deemed admitted. CPLR 3130(1) then restricts interrogatories by pairing: outside a matrimonial action a party may not serve interrogatories and also demand a bill of particulars of the same party, and in an action for personal injury, injury to property or wrongful death predicated solely on negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party without leave of court.

New York Requirements for Motion to Compel

• A Check That the Device Is Not a Notice to Admit

  CPLR 3124's only exception clause excludes a notice to admit under section 3123, so that device never goes to a motion to compel. CPLR 3123(a) provides that each matter of which an admission is requested shall be deemed admitted unless, within twenty days after service or within such further time as the court may allow, the party serves a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why that party cannot truthfully admit or deny them. An unsworn denial is not one of the two permitted responses. Where the denial was unreasonable, the remedy is CPLR 3123(c), an application at or immediately following trial for the reasonable expenses of proving the matter including attorney fees.

• Confirmation That the Twenty Days Have Run on the Right Clock

  CPLR 3133(a) gives twenty days after service of interrogatories to serve answers, with the reasons for any objection stated with reasonable particularity. CPLR 3122(a)(1) gives twenty days from service of a notice or subpoena duces tecum to serve a response stating with reasonable particularity the reasons for each objection. CPLR 3123(a) gives twenty days before a matter is deemed admitted. On documents there is a second and separate twenty days to keep apart from the first: CPLR 3120(2) requires the demanding party's own notice to specify a time not less than twenty days after service of the notice or subpoena, and the place and manner of the inspection, so the production date and the objection deadline are different dates.

• The Affirmation of Good Faith Under 22 NYCRR 202.7(a)(2), With Its 202.7(c) Contents

  22 NYCRR 202.7(a) provides that, except as provided in subdivision (d), no motion shall be filed with the court unless there have been served and filed with the motion papers a notice of motion and, with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. Subdivision (c) prescribes its contents: it shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. Cite (a)(2) and (c). Subdivision (f) of the same rule governs applications for temporary injunctive relief and is not the discovery affirmation. These uniform-rule wordings come from a published compilation, so confirm them against the court system's own text.

• An Affidavit Recording the Conference, Including How Long It Lasted

  22 NYCRR 202.20-f(b) provides that absent exigent circumstances, prior to contacting the court regarding a disclosure dispute, counsel must first consult with one another in a good faith effort to resolve all disputes about disclosure, and that such consultation must take place by an in-person or telephonic conference. The motion shall then be supported by an affidavit or affirmation from counsel attesting to having conducted that conference and setting forth the date and time of the conference, the persons participating, and the length of time of the conference. Where the adverse party unreasonably refused, the movant shall instead detail the efforts made to obtain a conference and set forth the responses received, and that refusal may be addressed by sanctions under Part 130.

• An Item-by-Item Account of the Requests and the Responses

  New York prescribes no separate statement, so the supporting affirmation carries the itemization: each disputed request as served, the whole of the response or objection, and one sentence on what is missing. Two reasonable-particularity duties give you the ground to stand on. CPLR 3133(a) requires the reasons for an interrogatory objection to be stated with reasonable particularity, and CPLR 3122(a)(1) requires a document response to state with reasonable particularity the reasons for each objection, which is per objection rather than per response. CPLR 3133(b) adds a formatting duty worth checking on the answers you did receive: each question shall be answered separately and fully, and each answer shall be preceded by the question to which it responds.

• A Check on Whether the Interrogatories Were Servable at All

  New York imposes no numeric interrogatory cap and restricts the device by combination instead. CPLR 3130(1) provides that except in a matrimonial action a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party under section 3041, and that in an action to recover damages for personal injury, injury to property or wrongful death predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party under rule 3107 without leave of court. The qualifier predicated solely on negligence matters, because a pleading that also advances a non-negligence theory falls outside that restriction. If the pairing applies and no leave was obtained, that is an answer to the motion rather than a defect in the response.

• The County, Where the Deposition or Inspection Is Elsewhere

  CPLR 3125 provides that unless otherwise provided by rule of the chief administrator of the courts, the county in which a deposition is being taken or an examination or inspection is being sought may be treated by the moving party as the county in which the action is pending for purposes of section 3124. The option belongs to the moving party and covers an examination or inspection as well as a deposition, so it reaches a CPLR 3121 examination and a CPLR 3120 inspection happening in another county. Read with CPLR 3124's reference to a person rather than a party, that is what makes the motion workable against a nonparty deponent. It yields to a contrary rule of the Chief Administrator, so check the rules for the county in question.

• A Realistic Relief Paragraph, Because the Rule Awards No Expenses

  Ask for an order under CPLR 3124 compelling compliance or a response, with a date for compliance, and do not ask for expenses as of right. CPLR 3124 contains no cost, expense or fee provision. CPLR 3126 is the separate penalty section and it is discretionary on its face, providing that the court may make such orders with regard to the failure or refusal as are just, among them an issue-resolution order, a preclusion order, or an order striking pleadings, staying proceedings, dismissing, or rendering judgment by default; none of the three is money, and the section contains no fee clause. Costs on a motion are discretionary under CPLR 8106 and capped by CPLR 8202 at an amount fixed by the court not exceeding one hundred dollars. The only attorney-fee provision nearby is CPLR 3123(c), which belongs to the notice to admit and is brought at or immediately following trial.