Opinion
2013-03-12
Rock J. WALKER, Plaintiff–Appellant, v. Scott FOREMAN, etc., Defendant–Respondent.
Matthew A. Kaufman, New York, for appellant. Kaufman & Serota, Rockville Centre (Lila N. Serota of counsel), for respondent.
Matthew A. Kaufman, New York, for appellant. Kaufman & Serota, Rockville Centre (Lila N. Serota of counsel), for respondent.
SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered May 6, 2011, which granted defendant's motion to strike plaintiff's pleadings, unanimously affirmed, without costs. Judgment, same court and Justice, entered July 14, 2011, awarding defendant damages in the amount of $116,530, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new inquest on damages.
The court providently exercised its discretion in striking plaintiff's pleadings, given plaintiff's intentional and unexcused failure to comply with more than three orders, some of them stipulated to by plaintiff, to produce documents relevant to the case (CPLR 3126; Oasis Sportswear, Inc. v. Rego, 95 A.D.3d 592, 944 N.Y.S.2d 101 [1st Dept. 2012] ). However, as an appearing party whose pleadings were stricken, plaintiff was entitled to five days notice of the inquest (CPLR 3215[g]; Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 [1984] ). The failure to give such notice requires a new inquest, on proper notice.