Opinion
2013-02-5
Maria SILVERIO, Plaintiff–Respondent, v. Ronny M. ARVELO, et al., Defendants–Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellants. Andrew L. Weitz & Associates, P.C., New York (Andrew L. Weitz of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for appellants. Andrew L. Weitz & Associates, P.C., New York (Andrew L. Weitz of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, MOSKOWITZ, ACOSTA, JJ.
Order, Supreme Court, Bronx County (Laura Douglas, J.), entered April 15, 2011, which, inter alia, granted plaintiff's motion to strike the answer of defendant Ronny M. Arvelo, unanimously affirmed, without costs.
Plaintiff established that Arvelo's repeated failure to appear for a deposition was willful and contumacious. Since defendants failed to meet their burden of demonstrating a reasonable excuse for the nonappearance, the court did not abuse its discretion in striking the pleading ( see Touray v. Munoz, 96 A.D.3d 623, 946 N.Y.S.2d 860 [1st Dept. 2012] ). Defendants' investigator had discovered that Arvelo was in school in the Dominican Republic and had no intent to return to New York. “The fact that defendant has disappeared or made himself unavailable provides no basis for denying a motion to strike his answer, particularly in the face of continued defaults in appearance for examination before trial” ( Foti v. Suero, 97 A.D.2d 748, 748, 468 N.Y.S.2d 170 [2d Dept. 1983];see Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 786 N.Y.S.2d 487 [1st Dept. 2004] ).