Opinion
874 CA 13-00766
09-26-2014
Tremain CASON, Plaintiff–Respondent, v. Kirby Sy SMITH, III and Werner Enterprises, Inc., Defendants–Appellants.
Demarie & Schoenborn, P.C., Buffalo, Lawrence A. Schulz, Orchard Park, for Defendants–Appellants. Vinal & Vinal, P.C., Buffalo (Jeanne M. Vinal of Counsel), for Plaintiff–Respondent.
Demarie & Schoenborn, P.C., Buffalo, Lawrence A. Schulz, Orchard Park, for Defendants–Appellants.
Vinal & Vinal, P.C., Buffalo (Jeanne M. Vinal of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and LINDLEY, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this action seeking to recover damages for injuries he sustained when the bus he was operating collided with a tractor-trailer owned by defendant Werner Enterprises, Inc. (Werner) and operated by defendant Kirby Sy Smith, III (Smith). The matter was transferred to Buffalo City Court for disposition. As defendants implicitly concede, City Court did not abuse its discretion in granting plaintiff's motion to strike the answer insofar as interposed by Smith based upon Smith's failure to appear for a court-ordered deposition (see Carabello v. Luna, 49 A.D.3d 679, 679–680, 853 N.Y.S.2d 663 ; Moriates v.
Powertest Petroleum Co., 114 A.D.2d 888, 889–890, 495 N.Y.S.2d 62, lv. dismissed 67 N.Y.2d 603, 499 N.Y.S.2d 1029, 490 N.E.2d 864, 67 N.Y.2d 757). We agree with defendants, however, that the court abused its discretion in striking the answer insofar as interposed by Werner. Initially, we note that there was no basis for the court to sanction Werner for failing to produce Smith inasmuch as Smith left Werner's employ prior to commencement of the action, and plaintiff “proffered no evidence that [Werner] exercised control over [Smith] and thus was responsible for [Smith]'s failure to appear for his deposition” (Carabello, 49 A.D.3d at 680, 853 N.Y.S.2d 663 ; see Moriates, 114 A.D.2d at 890, 495 N.Y.S.2d 62 ; see generally Hann v. Black, 96 A.D.3d 1503, 1503, 946 N.Y.S.2d 722 ). With respect to Werner's failure to comply with a prior order to produce a corporate representative for deposition, it is well established that “[a]lthough the nature and degree of a sanction for a party's failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking an answer is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith” (Green v. Kingdom Garage Corp., 34 A.D.3d 1373, 1374, 826 N.Y.S.2d 863 ; see Mosey v. County of Erie, 117 A.D.3d 1381, 1384, 984 N.Y.S.2d 706 ). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v. United Realty Mgt. Corp., 82 A.D.3d 1616, 1619, 920 N.Y.S.2d 495 ). Here, plaintiff met that initial burden, “thereby shifting the burden to defendant[s] to offer a reasonable excuse” (Hill v. Oberoi, 13 A.D.3d 1095, 1096, 786 N.Y.S.2d 765 ). We agree with Werner, however, that it offered a reasonable excuse for its failure to comply with the prior order. Plaintiff sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training, and supervision, and such discovery was no longer relevant after Werner conceded the facts necessary to establish liability as a matter of law based on respondeat superior (see generally Ruiz v. Cope, 119 A.D.3d 1333, 1335, 989 N.Y.S.2d 211 ; Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88 ; Ashley v. City of New York, 7 A.D.3d 742, 743, 779 N.Y.S.2d 502 ). We thus conclude that the court abused its discretion in granting that part of plaintiff's motion to strike the answer insofar as asserted by Werner. Instead, we impose the lesser sanction of resolving the issue of negligence in plaintiff's favor (see CPLR 3126[1] ; Beatty v. First Atl. Hous. Corp., 209 A.D.2d 658, 660, 622 N.Y.S.2d 54 ), and directing Werner to pay the sum of $1,500 to plaintiff's counsel (see L & L Auto Distribs. & Suppliers Inc. v. Auto Collection, Inc., 85 A.D.3d 734, 736, 925 N.Y.S.2d 151 ; Adzer v. Rudin Mgt. Co., Inc., 50 A.D.3d 1070, 1072, 856 N.Y.S.2d 674 ). We therefore modify the order accordingly, and we remit the matter to City Court for a trial on serious injury and proximate cause (see Ruzycki v. Baker, 301 A.D.2d 48, 51, 750 N.Y.S.2d 680 ) and, if necessary, a new trial on damages. Based upon our determination, we do not address defendants' remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying in part plaintiff's motion to strike defendants' answer and reinstating the answer insofar as interposed by defendant Werner Enterprises, Inc., resolving the issue of negligence in favor of plaintiff, and directing defendant Werner Enterprises, Inc. to pay $1,500 to plaintiff's counsel, and as modified the order is affirmed without costs and the matter is remitted to Buffalo City Court for further proceedings.