Key Points

  • The Appellate Division, First Department, unanimously affirmed two CPLR 3126 sanctions orders entered against defendant Danah Almayouf in a defamation action brought by Rawan Abdullah Abuzaid.
  • The court upheld an April 2024 order requiring Almayouf to produce documents, identify lost or destroyed material, and submit her devices for a third-party forensic examination at her own expense.
  • The court upheld a January 2025 order striking Almayouf's answer, precluding unproduced evidence, directing a negative inference, and awarding attorneys' fees, citing her repeated noncompliance after a prior warning.
  • The court held that Almayouf's pro se status did not excuse her noncompliance and that she was not denied due process, because both motions were on notice, she responded, and oral argument was not required.
  • In a footnote, the court said a case cited in Almayouf's brief does not appear to exist and cautioned her to check her legal citations.

A New York appeals court on Oct. 27 upheld orders striking a defendant's answer in a defamation lawsuit and requiring her to pay for a forensic examination of her electronic devices, finding she had ignored repeated court orders to turn over social media posts and other evidence.

A five-justice panel of the Appellate Division, First Department, unanimously affirmed two sanctions orders issued by Justice Nancy M. Bannon of State Supreme Court in New York County against Danah Almayouf, who is being sued by Rawan Abdullah Abuzaid, identified in the caption as "also known as Model Roz." The decision was issued by Justices Moulton, who presided, Mendez, Gesmer, O'Neill Levy and Parker-Raso.

The ruling leaves Almayouf without an answer. It also leaves in place orders barring her from offering evidence she did not produce, directing a negative inference against her on evidence she withheld, and requiring her to pay Abuzaid's attorneys' fees. The panel held that Justice Bannon acted within her discretion in assigning Almayouf the cost of a third-party search for material she admitted had been lost or deleted.

The sanctions were imposed under CPLR 3126. The panel described Almayouf's conduct as "chronic noncompliance with her discovery obligations."

According to the decision, Almayouf admitted at her deposition in January 2022 that she had not produced several categories of material Abuzaid had demanded, "including social media posts directly relevant to plaintiff's claims." In a July 18, 2022, order, Justice Bannon directed her to produce the missing documents and warned that failure to comply "may result in a preclusion order or other sanctions pursuant to CPLR 3126."

Almayouf did not comply, the panel found, and "continued to make derogatory posts about plaintiff on her social media accounts." She also failed to help identify and recover material she had deleted herself or that was lost when social media platforms suspended or terminated her accounts.

Justice Bannon's April 2024 order directed Almayouf to produce the documents, to identify any that had been lost or destroyed, and to "provide any electronic devices she used to publish statements about the plaintiff, plaintiff's counsel, and/or this action for forensic examination by an expert chosen by the plaintiff, which examination shall be at the defendant's expense." The order provided that if she failed to comply, she would be precluded from offering unproduced evidence on any dispositive motion or at trial.

On appeal, Almayouf challenged the relevance of the documents, but the panel called those arguments meritless. "The documents are clearly relevant to plaintiff's claims," the court wrote, adding that she had previously agreed to produce many of them and had been ordered in July 2022 to produce all of them.

The panel also rejected her claim that safety concerns justified withholding the material, noting that she "could have sought a protective or confidentiality order, but did not do so." It called her description of the forensic examination's scope "misleading," explaining that the examination's aim is to find responsive documents that were lost or destroyed and determine whether they can be recovered. Her own admissions that documents had been lost or deleted justified the examination, the court held.

The panel likewise rejected her argument that her pro se status excused her conduct. "Defendant's pro se status provides no excuse for her non-compliance with her discovery obligations," the panel wrote, noting that she had been represented by counsel during most of the relevant period. Citing its own 2008 precedent, the court added that a self-represented litigant does not have "license to ignore court orders, engage in dilatory and obstructive conduct or malign officers of the court."

The January 2025 order went further. Justice Bannon struck Almayouf's answer, precluded her from offering any evidence not produced, and directed that a negative inference be drawn "as to any evidence that was demanded by the plaintiff and not produced by the defendant per the court's orders." The panel found that Almayouf "made no attempt to comply with the April 2024 order" and "instead repeatedly posted on social media about her frustration with the April order and her disinclination to comply with it."

The court rejected Almayouf's argument that she was denied due process. Both motions were made on notice, and she responded to them, the panel said. Oral argument was not required, and Justice Bannon properly relied on an opposition brief filed by Almayouf's former lawyer, which she never tried to withdraw or supplement. Nor did the judge have to wait for the appeal of the April 2024 order before ruling on the later motion, the panel held, because no automatic stay applied and Almayouf never asked for a discretionary one.

The panel found the sanctions "not grossly disproportionate or unduly severe." It concluded that Almayouf's "repeated noncompliance with court orders without reasonable excuse warrants striking her answer, especially where, as here, at least one prior order warned of the possibility of such a penalty."

In a footnote, the court said Almayouf's appellate brief cited a case, Emigrant Mtg. Co. v St. Francis, 131 AD3d 827, that "does not appear at the given citation and which does not appear to exist." The panel wrote: "Defendant is cautioned that her pro se status does not excuse her failure to check the legal citations that she offers to a court."

Almayouf represented herself on appeal. Abuzaid was represented by David I. Greenberger of Bailey Duquette P.C.

Both orders were affirmed without costs. Each awards Abuzaid attorneys' fees and costs "in an amount to be determined." The panel declined to consider Almayouf's objections to the size of the fee award under the January 2025 order, saying the amount is the subject of a separate order that was not before it on this appeal.