Opinion
683-, 684 Index No. 161539/15 Case Nos. 2022–02279, 2022–04177
10-03-2023
1591 SECOND AVENUE LLC et al., Plaintiffs–Respondents, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendants–Appellants.
Cullen and Dykman LLP, New York (John Sparling of counsel), for appellants. Cox Padmore Skolnik & Shakarchy LLP, New York (Laleh Hawa of counsel), for respondents.
Cullen and Dykman LLP, New York (John Sparling of counsel), for appellants.
Cox Padmore Skolnik & Shakarchy LLP, New York (Laleh Hawa of counsel), for respondents.
Kern, J.P., Moulton, Mendez, Higgitt, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 2, 2022, which granted plaintiffs’ motion to strike defendants’ answer, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 24, 2022, which denied defendants’ motion to vacate the note of issue and compel the completion of outstanding discovery, unanimously affirmed, without costs.
On remittal (see 1591 Second Ave. LLC v. Metropolitan Transp. Auth., 202 A.D.3d 582, 584, 163 N.Y.S.3d 56 [1st Dept. 2022] ), Supreme Court correctly determined that the two affidavits submitted by defendants did not meet the standard set forth in Jackson v. City of New York , 185 A.D.2d 768, 586 N.Y.S.2d 952 (1st Dept. 1992) and, upon the determination, providently exercised its discretion in granting plaintiffs’ motion to strike defendants’ answer ( CPLR 3126 ). Neither affidavit explained "where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found" ( Jackson, 185 A.D.2d at 770, 586 N.Y.S.2d 952 ). Rather, affiant Nitin Patel admitted during his deposition that he in fact had no personal knowledge of the search performed, and affiant Juan Viruet set forth only the search procedures in general terms, without reference to the particular search at issue. Defendants’ submission of such patently insufficient affidavits, along with their unexplained failure to comply with six prior court orders directing the submission of a Jackson affidavit, the last of which warned of sanctions, during a three-year period, permitted an inference of willful and contumacious conduct, justifying, under the circumstances, the drastic remedy of striking their answer (see McHugh v. City of New York, 150 A.D.3d 561, 562, 55 N.Y.S.3d 29 [1st Dept. 2017] ; Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept. 2011] ).
Because defendants’ answer was properly stricken, they were not entitled to vacatur of the note of issue or any discovery, including discovery in preparation for the inquest (see Servais v. Silk Nail Corp., 96 A.D.3d 546, 547, 946 N.Y.S.2d 568 [1st Dept. 2012] ; Gray v. Jaeger, 57 A.D.3d 303, 304, 868 N.Y.S.2d 521 [1st Dept. 2008] ).
We have considered defendants’ remaining contentions and find them unavailing.