3126

Lee v 13th St. Entertainment LLC, 2018 NY Slip Op 03751 [1st Dept. 2018] (note the dissent)

A court may strike an answer only when the moving party establishes "a clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1st Dept 1999]). Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith. Although defendants failed to produce deposition witnesses in violation of two court orders, defendants' business was defunct and its former employees and officers were no longer within their control(see Ewadi v City of New York, 66 AD3d 583 [1st Dept 2009]; Schneider v 17 Battery Place N. Assoc. II, 289 AD2d 164, 165 [1st Dept 2001]).

Defendants provided plaintiff with contact information for their employees and plaintiff could have subpoenaed such employees as nonparty witnesses. Furthermore, defendants did not receive prior warning from the court that a failure to comply with the court orders would result in CPLR 3126 sanctions. Accordingly, in light of the strong preference to resolve actions on their merits, plaintiff's motion to strike should have been denied (see e.g. Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]).

Vizcaino v Western Beef, Inc., 2018 NY Slip Op 03752 [1st Dept. 2018]

We see no reason to disturb the motion court's exercise of discretion in declining to strike defendants' answer (seeCPLR 3126[3]). Defendants ultimately provided current contact information for the cashier who assisted plaintiff after her accident at their store, and explained their delay in providing this information as the result of a series of purported good faith mistakes. However, in view of the length of time it took and multiple discovery motions and court orders for defendants finally to provide complete and accurate information, we find that monetary sanctions are warranted. An award of the costs of this motion and appeal is appropriate to compensate plaintiff for the extraordinary time and effort necessitated by defendants' lack of diligence.

Broderick v Edgewater Park Owners Coop., Inc., 2018 NY Slip Op 03924 [1st Dept. 2018]

Plaintiffs' motion to compel the depositions of certain witnesses was properly denied for failure to demonstrate that the witnesses already deposed had insufficient knowledge, and the substantial likelihood that those witnesses they sought to depose possessed information material and necessary to the prosecution of the case (see Colicchio v City of New York , 181 AD2d 528, 529 [1st Dept 1992]). Injured plaintiff's one-page supporting affidavit contradicted his prior deposition testimony and was properly disregarded by the court. Moreover, the affidavit did not address the testimony of the witnesses already deposed, and contained only vague assertions as to the relevant information the named witnesses might likely provide. Accordingly, there is no basis to disturb the court's determination (see generally Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406-407 [1968])

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