Automated Summary
Key Facts
In Cardona v E.E. Cruz & Co., Inc. (2026 NY Slip Op 30852(U)), the Supreme Court of New York County denied the E.E. Cruz Defendants' motion to vacate a preclusion order. The court found the defendants repeatedly failed to comply with prior orders, including submitting proper Jackson affidavits of search for responsive records. Despite providing some documents, their affidavits lacked sufficient detail about search locations, preservation efforts, or routine destruction practices. The court emphasized that 'substantial compliance' with conditional orders is insufficient to avoid self-executing preclusion consequences, citing willful noncompliance. As a result, the E.E. Cruz Defendants were precluded from presenting evidence on liability or damages for the plaintiff's claims at trial.
Issues
- The court considered whether the E.E. Cruz Defendants' failure to comply with the conditional order of preclusion (including not submitting proper Jackson affidavits) constituted willful non-compliance, thereby justifying the preclusion from presenting evidence on liability or damages.
- The court assessed the defendants' claim that a third-party street sweeper caused the incident, concluding that this wouldn't absolve them under Labor Law 240(1) if the equipment required securing.
- The court determined that 'substantial compliance' with a conditional order is not a valid defense against the enforcement of a self-executing preclusion order, citing prior case law.
- The court evaluated the adequacy of the Jackson affidavits submitted by the defendants, which were found to be conclusory and not in accordance with the required standard for affidavits of search.
Holdings
The court denied the E.E. Cruz Defendants' motion to vacate the preclusion order, ruling that they failed to comply with the conditional order requiring an affidavit of search and did not demonstrate a reasonable excuse or a meritorious defense. The decision emphasized that 'substantial compliance' with a conditional order is insufficient to avoid preclusion, and the defendants' affidavits lacked necessary details about document preservation and search efforts.
Remedies
The court denied the E.E. Cruz Defendants' motion to vacate the July 24, 2025 order precluding them from offering evidence on liability or damages, upholding the conditional preclusion order.
Legal Principles
The court applied the legal standard from Jackson v City of New York (185 AD2d 768, 770 [1st Dept 1992]), requiring affidavits of search to specify where responsive records were likely kept, preservation efforts, and whether records were routinely destroyed. It also enforced the principle that substantial compliance with a conditional order is not a defense to the self-executing consequences of non-compliance, as established in cases like ZDG LLC v 310 Group LLC (193 AD3d 668) and Gibbs v St. Barnabas Hosp. (16 NY3d 74).
Precedent Name
- ZDG LLC v 310 Group LLC
- Jackson v City of New York
- Scholem v Acadia Realty Ltd. Partnership
- 630 W. 52nd LLC v Fresh Inventory Services, LLC
- Fabrizi v 1095 Ave. of the Ams., L.L.C.
- Citizen Watch Co. of Am., Inc. v Zapco 1500 Inv., L.P.
- Gibbs v St. Barnabas Hosp.
Cited Statute
New York Labor Law
Judge Name
Richard Tsai
Passage Text
- the E.E. Cruz Defendants have exhibited a continued pattern of noncompliance which establishes willfulness
- Neither was shown here
- substantial compliance with a conditional order is not a defense to the self-executing order