Practice point: Defense counsel asserted that he could not produce the
individual defendant for deposition because he could not secure his
cooperation or locate him. The defendants failed to substantiate a
reasonable excuse for the individual defendant's failure to appear for a
court-ordered deposition. In addition, the defendants failed to demonstrate a
reasonable excuse for the corporate defendant's failure to appear at a court-ordered deposition. Accordingly, the Supreme Court providently exercised its discretion in
issuing a conditional order requiring the defendants to
appear for depositions within a specified time or face the sanction of
striking their answer.
When the defendants failed to appear for their court-ordered
depositions within the specified time, the conditional order became absolute.To be relieved of the order's
striking their answer, the defendants were required to demonstrate a
reasonable excuse for their failure to appear for depositions and a
potentially meritorious defense.The defendants failed to demonstrate either, and their answer was properly stricken. As a result of having their answer stricken, the defendants were
deemed to admit all traversable allegations in the complaint, including
the basic allegation of liability. Accordingly, the Supreme Court properly granted that
branch of the plaintiffs' motion which was for summary judgment on the
issue of liability.
Student note: A court may issue an order striking out pleadings or rendering a judgment by default as a sanction against a party who refuses to obey an order for disclosure or wilfully fails to disclose
information which the court finds ought to have been disclosed, pursuant to CPLR
3126[3]. While actions should be resolved on the merits when possible, a
court may strike an answer upon a clear showing that the
failure to comply with a disclosure order was the result of willful and
contumacious conduct.
Case: Almonte v. Pichardo, NY Slip Op 02209 (2d Dept. 2013).
Here is the decision.
Monday's issue: Motions for renewal and reargument.
