Non–Self-Executing Discovery Orders Are Not Conditional Preclusion Orders; Disclosure Motions Must Include 22 NYCRR 202.7 Good-Faith Affirmation and a Specific, Willfulness-Based Record for CPLR 3126 Sanctions

Introduction

In Noh Soon Park v Food Bazaar Supermarket (2026 NY Slip Op 05108), the Appellate Division, Second Department addressed the limits on discovery sanctions—especially preclusion—and the procedural requirements for disclosure-related motion practice. The plaintiff, Noh Soon Park, brought a personal injury action against Food Bazaar Supermarket and related defendants, alleging he was injured when struck by a pallet pulled by a chain and forklift operated by the defendants.

The appeal arose from two Kings County Supreme Court orders: (1) an October 3, 2024 order granting defendants’ motion to preclude the plaintiff from offering evidence, testifying at trial, or submitting affidavits in response to dispositive motions; and (2) a January 16, 2025 order denying renewal/reargument and granting summary judgment to defendants after the plaintiff had been precluded.

The central issues were whether an earlier discovery order (August 15, 2022) was a conditional order of preclusion that became “absolute” upon noncompliance, whether defendants complied with 22 NYCRR 202.7 (the “good-faith conferral” requirement) when moving on disclosure, and whether the record justified the “drastic” sanction of preclusion under CPLR 3126.

Summary of the Opinion

The Second Department reversed the preclusion order and, consequently, reversed the summary judgment dismissal. The court held:

  • The August 2022 order was not a conditional order of preclusion because it was not self-executing—it required an additional motion “upon further motion for same, pursuant to CPLR 3126(2).”
  • Defendants’ motion seeking disclosure sanctions should have been denied for failure to include a compliant 22 NYCRR 202.7 good-faith affirmation (or to show good cause for not conferring).
  • Even on the merits, defendants failed to make a “clear showing” that plaintiff’s noncompliance was willful and contumacious: the moving papers did not precisely identify what discovery was demanded and not provided, and the underlying orders were vague about the allegedly outstanding material.
  • Because preclusion was improper, summary judgment based on the preclusion posture was also improper.

The court dismissed the appeal from the denial of reargument (nonappealable), dismissed the renewal issue as academic in light of the reversal, awarded one bill of costs to the plaintiff, and denied summary judgment.

Analysis

Precedents Cited

1) What qualifies as a conditional order of preclusion (self-executing vs. “upon further motion”)

  • White v Bical Dev., Inc., 229 AD3d 586: Cited for the definition of a conditional order of preclusion—an order directing discovery “by a date certain, or face the sanctions specified.” The Second Department used White’s framework to test whether the August 2022 order operated automatically.
  • Gibbs v St. Barnabas Hosp., 16 NY3d 74: Cited for the rule that when a litigant fails to comply with a true conditional order of preclusion, the order’s sanction may become “absolute.” The court distinguished that principle here because the predicate order was not self-executing.
  • Barua v IM Peculiar, Inc., 243 AD3d 861 and Degachi v Faridi, 230 AD3d 634: These cases supported the key holding: an order that contemplates sanctions only “upon further motion” is not self-executing and therefore is not a conditional order of preclusion.
  • Williams v Staten Is. Univ. Hosp., 241 AD3d 989 and Cooper v Mt. Sinai Hosp., 208 AD3d 453: Cited for the procedural consequence of the above: because the August 2022 order was not a conditional preclusion order that became absolute, the plaintiff was not required to move to be relieved from it.

2) The 22 NYCRR 202.7 good-faith conferral requirement as a gatekeeping rule

  • Winter v ESRT Empire State Bldg., LLC, 201 AD3d 842: Quoted for the specific content requirement of the good-faith affirmation, including stating the “time, place and nature of the consultation,” issues discussed, resolutions, or good cause for not conferring.
  • Steele v Samaritan Found., Inc., 208 AD3d 1265: Cited for the enforcement principle that failure to provide a proper good-faith affirmation “warrants denial of the motion.” The court treated 22 NYCRR 202.7 compliance not as a technicality but as a prerequisite to disclosure motion practice.

3) Standards for CPLR 3126 sanctions (willful/contumacious noncompliance; specificity of the demanded items)

  • Guardado v K.B.G. Commercial, Inc., 209 AD3d 721 (quoting Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019): Cited for the statutory standard under CPLR 3126: sanctions may be imposed where a party refuses to obey a disclosure order or “willfully fails” to disclose information that should have been disclosed.
  • Giraldo v Highmark Ind., LLC, 175 AD3d 654: Cited for the heightened threshold for the “drastic remedy” of preclusion: a “clear showing” that noncompliance was willful and contumacious.
  • Cyngiel v Krigsman, 224 AD3d 875: Used to reinforce that vague assertions and an undeveloped record—especially where demanded items are not identified with precision—do not justify severe discovery sanctions.

4) Downstream effect on summary judgment when preclusion is reversed

  • Ortiz v 1818 Bath Ave., LLC, 220 AD3d 670 and Fortino v Wheels, Inc., 204 AD3d 756: Cited for the proposition that where a party was improperly precluded from submitting evidence or affidavits in response to a dispositive motion, summary judgment predicated on that preclusion posture cannot stand.

Legal Reasoning

A. The August 2022 order did not “automatically” preclude; it required a further CPLR 3126 motion

The Supreme Court treated the August 2022 order as a conditional order of preclusion that became absolute upon noncompliance. The Second Department rejected that characterization because the order’s text expressly contemplated an additional step: sanctions would occur only “upon further motion” under CPLR 3126(2). That phrasing matters.

A true conditional preclusion order is self-executing—noncompliance triggers the sanction without further judicial action. By contrast, an order that requires “further motion” is effectively a warning and a procedural roadmap, not an automatic preclusion mechanism. This distinction drove the appellate court’s conclusion that the plaintiff had no obligation to move to be “relieved” from an order that had not converted into an absolute sanction by operation of its own terms.

B. The defendants’ sanctions motion failed at the threshold due to noncompliance with 22 NYCRR 202.7

The decision treats 22 NYCRR 202.7(a) as a strict, enforceable condition for motions “relating to disclosure.” The court found that defendants’ counsel did not attest to conferral efforts and did not show good cause for the absence of such conferral. Under the cited authority, that omission alone required denial of the motion.

C. The record did not justify the “drastic” sanction of preclusion under CPLR 3126

Even setting aside the 22 NYCRR 202.7 defect, the court found the merits showing inadequate. Two related deficiencies were decisive:

  1. No “clear showing” of willful and contumacious conduct. The defendants did not present proof establishing that any noncompliance was deliberate, persistent, or in bad faith.
  2. Lack of specificity about what was demanded and what was missing. The motion papers did not “identify precisely” what discovery was requested and not provided; meanwhile, the relevant court orders referenced missing items only vaguely (e.g., “authorizations,” “complete responses”) without specifying the allegedly outstanding categories. Without a clear inventory of unmet obligations, the court could not properly find willful defiance of identified directives.

The Second Department’s approach reflects a proportionality-and-clarity principle: severe sanctions require a sharply defined obligation and a demonstrable, culpable failure to meet it.

D. Summary judgment fell with the preclusion order

Once the appellate court concluded the plaintiff should not have been barred from presenting evidence or affidavits in response to dispositive motions, summary judgment—granted in a procedural posture shaped by that preclusion—could not stand. The court therefore denied summary judgment rather than remitting solely for reconsideration under a corrected evidentiary framework.

Impact

This decision has practical force in New York discovery practice, particularly in the Second Department:

  • Drafting and interpreting discovery orders: Litigants and courts must distinguish between self-executing conditional orders and orders that require “further motion.” Where an order says sanctions will follow only “upon further motion,” parties should not assume automatic preclusion.
  • Motion practice discipline under 22 NYCRR 202.7: Disclosure motions lacking a detailed good-faith affirmation (or good-cause explanation) are vulnerable to outright denial—before reaching the merits. This encourages genuine conferral and reduces motion congestion.
  • Sanctions require specificity: Parties seeking CPLR 3126 sanctions should document (i) the exact demands served, (ii) the precise deficiencies, (iii) the history of follow-ups, and (iv) why noncompliance is willful/contumacious. Vague references to “complete responses” or unspecified “authorizations” are insufficient.
  • Dispositive motion strategy: Summary judgment that depends on preclusion can be undone if the sanction was imposed without procedural compliance or a robust evidentiary record. Defendants contemplating summary judgment should ensure any discovery-sanction foundation is appellate-proof.

Complex Concepts Simplified

Conditional order of preclusion
A court order that says: provide specified discovery by a stated deadline or you will automatically be barred (“precluded”) from offering certain evidence. If truly conditional and self-executing, the sanction may become automatic upon noncompliance.
Self-executing vs. “upon further motion”
Self-executing means the sanction triggers automatically if the condition is not met. If an order says sanctions will apply only “upon further motion,” it is not automatic; the moving party must return to court and justify sanctions.
CPLR 3126
The New York procedural rule authorizing courts to impose penalties for discovery violations, including orders deeming issues resolved, striking pleadings, or precluding evidence—typically reserved for serious, unjustified noncompliance.
Willful and contumacious
A high standard meaning the party’s noncompliance looks intentional, stubborn, or in bad faith—not merely negligent or the product of confusion. Courts often infer willfulness from repeated violations of clear orders, especially after warnings and opportunities to cure.
22 NYCRR 202.7 good-faith affirmation
A required attorney statement for disclosure motions describing efforts to resolve the dispute without court intervention—who conferred, when, how (phone/in-person/email), what was discussed, and what was resolved (or why conferral did not occur).

Conclusion

Noh Soon Park v Food Bazaar Supermarket reinforces three connected principles: (1) discovery orders that require sanctions only “upon further motion” are not self-executing conditional preclusion orders; (2) disclosure motions must satisfy the good-faith conferral requirement of 22 NYCRR 202.7; and (3) severe CPLR 3126 sanctions like preclusion demand a specific record and a clear showing of willful, contumacious noncompliance. By reversing both preclusion and the resulting summary judgment, the Second Department signals that procedural rigor and evidentiary specificity are essential before courts may impose outcome-shaping discovery penalties.