CPLR § 3126 Penalties for refusal to comply with order or to disclose
CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing
1.
After commencement of an action, any party may serve on any other party
a notice or on any other person a subpoena duces tecum:
(i)
to produce and permit the party seeking discovery, or someone acting on
his or her behalf, to inspect, copy, test or photograph any designated
documents or any things which are in the possession, custody or control
of the party or person served
Argo v Queens Surface Corp., 2009 NY Slip Op 00320 (App. Div., 2nd)
A court may, inter alia, issue an order "striking out pleadings or . . . rendering a judgment by default" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[3]; see Carabello v Luna, 49 AD3d 679). Striking a defendant's answer is a drastic remedy which is "inappropriate absent a clear showing that failure to comply with discovery demands was willful and contumacious" (Paca v City of New York, 51 AD3d 991, 993, quoting Brandes v North Shore Univ. Hosp., 22 AD3d 778; see Jenkins v City of New York, 13 AD3d 342).
...
The plaintiff did not show that the defendants engaged in willful or contumacious conduct by failing to provide items "which are in [their] possession, custody or [*2]control" (CPLR 3120[1][i]). Indeed, the defendants demonstrated that the records and reports that the plaintiff sought with respect to the defendant Queens Surface Corp. — a bus company no longer in existence — were now in the possession of its successor, the MTA Bus Co., which company was not under their control. Accordingly, the defendants cannot be compelled to produce or be sanctioned for failing to produce information which they do not possess or which does not exist (see Carabello v Luna, 49 AD3d at 680; Tolz v Valente, 39 AD3d 737, 738; Corriel v Volkswagen of Am., 127 AD2d 729, 731).
The bold is mine.
