Opinion
2008-2099 Q C.
Decided October 13, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered October 3, 2008. The order granted plaintiff's motion to strike defendants' answer.
ORDERED that the order is affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
Plaintiff commenced the instant action to recover damages for personal injuries sustained as a result of a motor vehicle accident. On July 20, 2007, the parties entered into a so-ordered stipulation which provided, inter alia, that depositions were to be held on or before September 20, 2007. Thereafter, on February 8, 2008, the parties entered into another so-ordered stipulation which provided, inter alia, that, within 35 days, defendants would provide plaintiff with the title document to their motor vehicle as well as the name and address of the title owner, and that depositions of all parties would be held within 30 days after said discovery was provided. While defendants provided the aforementioned discovery, they were never produced for depositions. On September 5, 2008, plaintiff moved for an order striking defendants' answer or, in the alternative, a conditional order compelling both defendants to appear for depositions on a date certain or their answer would be stricken. Defendants opposed the motion, and the Civil Court granted plaintiff's motion and struck defendants' answer. The instant appeal by defendants ensued.
"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has refused to obey an order or willfully fails to disclose information which should be disclosed is a matter within the discretion of the court . . . Absent an improvident exercise of discretion, a determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed" ( Jaffe v Hubbard, 299 AD2d 395, 396; see Kihl v Pfeffer, 94 NY2d 118, 123).
In opposition to plaintiff's motion, defendants' attorney stated that one of the defendants no longer lives in the United States and he was unable to locate either defendant. The fact that a defendant has disappeared or made himself unavailable provides no basis for denying a motion to strike his answer for failure to appear at a deposition ( see Carabello v Luna, 49 AD3d 679; Torres v Martinez, 250 AD2d 759; Dash v DK Tr., 239 AD2d 313; Rowe v Lee Gee Sook, 224 AD2d 404). Accordingly, the Civil Court did not improvidently exercise its discretion in granting plaintiff's motion to strike defendants' answer.
Pesce, P.J., Golia and Steinhardt, JJ., concur.