The doctrine is properly invoked to strike the answer of a defendant that appeared in the prior action or proceeding and that has, by deliberate action, refused to defend or litigate the charge or allegation that is the subject of the preclusion request. Here, the decision in the prior action established the defendant's failure to comply with four court orders requiring it to appear for deposition and its president's wilful refusal to comply with the court's mandates. Therefore, the defendant had a full and fair opportunity to litigate the underlying merits but affirmatively chose not to.
Perez v. 76th & Broadway Owner, LLC, NY Slip Op 04108 (1st Dep't June 23, 2022)
