Opinion
2012-06-21
Binta TOURAY, Plaintiff–Respondent, v. Manuel F. MUNOZ, et al., Defendants–Appellants.
Morici & Morici, LLP, Garden City (David Smetana of counsel), for appellants. Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Morici & Morici, LLP, Garden City (David Smetana of counsel), for appellants. Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about April 18, 2011, which granted plaintiff's motion to strike defendants' answer to the extent of striking defendant Jose Gonzalez's answer unless he appeared for deposition within 45 days of the date of the order, unanimously affirmed, without costs.
Plaintiff established that defendant Gonzalez's repeated failure to appear for a deposition, and his failure to comply with successive disclosure orders, were willful and contumacious ( see Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [2010] ). In opposition, defendants failed to meet their burden of demonstrating a reasonable excuse for Gonzalez's non-appearance, offering no excuse for his failure to appear for a deposition from April 20, 2010 to January 19, 2011 ( see id.). Defendants also failed to demonstrate good faith efforts to secure Gonzalez's appearance at a deposition. The record does not reveal any concerted attempt by his attorneys to retain an investigator to locate him until after he failed to appear several times ( see Mason v. MTA N.Y. City Tr., 38 A.D.3d 258, 832 N.Y.S.2d 153 [2007];Wong v. Ki Il Kim, 17 A.D.3d 128, 792 N.Y.S.2d 435 [2005] ). Moreover, the investigation performed shows that Gonzalez received correspondence from his attorney's office, and simply ignored it.