Opinion
2021–02558 Index No. 706512/19
01-25-2023
Sandra DEJESUS, respondent, v. LILLY TRANS CORP., et al., appellants.
Baker, McEvoy & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for appellants. Mallilo & Grossman, Flushing, NY (Stephen M. Grossman of counsel), for respondent.
Baker, McEvoy & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for appellants.
Mallilo & Grossman, Flushing, NY (Stephen M. Grossman of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Pam Jackman–Brown, J.), entered March 5, 2021. The order, insofar as appealed from, conditionally granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer unless the defendants appeared for depositions within 30 days.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when a vehicle she was operating was struck by a vehicle owned by the defendants Lilly Trans Corp. and Imran Yousuf, and operated by the defendant Mohammad A. Javed. The plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants answered the complaint. After the defendants failed to appear for depositions on numerous occasions, the plaintiff moved pursuant to CPLR 3126 to strike the defendants’ answer, arguing that she was prejudiced by the delays in holding depositions. In an order entered March 5, 2021, the Supreme Court, inter alia, conditionally granted the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer unless the defendants appeared for depositions within 30 days. The defendants appeal.
"Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. The striking of a pleading is an extreme sanction but may be warranted when there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders" ( Cook v. SI Care Ctr., 205 A.D.3d 875, 877, 169 N.Y.S.3d 624 [citations and internal quotation marks omitted]). " ‘The fact that a defendant has disappeared or made himself or herself unavailable is not a basis for denying a motion to strike his or her answer for failure to appear at a deposition’ " ( Sepulveda v. 101 Woodruff Ave. Owner, LLC, 166 A.D.3d 835, 837, 89 N.Y.S.3d 89, quoting Bates v. Baez, 299 A.D.2d 382, 382, 749 N.Y.S.2d 424 ; see Carabello v. Luna, 49 A.D.3d 679, 680, 853 N.Y.S.2d 663 ).
Contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in conditionally granting the plaintiff's motion pursuant to CPLR 3126 to strike the defendants’ answer unless the defendants appeared for depositions within 30 days (see Sepulveda v. 101 Woodruff Ave. Owner, LLC, 166 A.D.3d at 836–837, 89 N.Y.S.3d 89 ; Almonte v. Pichardo, 105 A.D.3d 687, 962 N.Y.S.2d 650 ; Carabello v. Luna, 49 A.D.3d at 680, 853 N.Y.S.2d 663 ; Bates v. Baez, 299 A.D.2d at 382, 749 N.Y.S.2d 424 ).
Accordingly, we affirm the order insofar as appealed from.
The defendants’ remaining contention does not require a different result (see generally Abbas v. Cole, 7 A.D.3d 649, 776 N.Y.S.2d 846 ; Godwins v. Coggins, 280 A.D.2d 582, 582, 720 N.Y.S.2d 809 ).
BRATHWAITE NELSON, J.P., RIVERA, DOWLING and VOUTSINAS, JJ., concur.