On November 16, 2023, the First Department issued a decision in Legacy Org., Inc. v. Nomellini, 2023 NY Slip Op. 05791, holding that a party’s answer should not have been struck as a contempt sanction, explaining:

Supreme Court should not have stricken defendant’s answer as the record does not establish that plaintiff is entirely bereft of evidence tending to establish its position. To the extent the documentary evidence is sufficient to establish plaintiff’s claims, the information from the deleted email account would not be the sole means for plaintiff to make its case. Nor has plaintiff established that defendant willfully failed to comply with the court’s order to provide outstanding discovery to warrant the drastic relief of striking defendant’s answer. Accordingly, the matter is remanded for Supreme Court to consider, after affording the parties an opportunity to be heard, such lesser penalty than striking the answer which the court deems just.

Supreme Court also should not have held defendant in civil contempt without making an express recital as to whether defendant’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to a civil proceeding. Accordingly, the matter is also remanded for such an express finding.

(Internal quotations and citations omitted).