Barnes v City of New York

2007 NY Slip Op 06941 [43 AD3d 1094]

September 25, 2007

Appellate Division, Second Department

As corrected through Wednesday, November 7, 2007

Clifford Barnes, Respondent, v City of New York,Appellant, et al., Defendants.

—[*1]Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andKaren M. Griffin of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant City of New Yorkappeals from an order of the Supreme Court, Kings County (Solomon, J.), dated June 29, 2006,which conditionally granted the plaintiff's motion pursuant to CPLR 3126 to strike its answerunless it produced a witness for a deposition with knowledge of the planning and installation ofthe stop sign at issue within 90 days of the date of the order.

Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.

In the instant case, the drastic remedy of striking the answer of the defendant City of NewYork was not warranted because there was no clear showing that its failure to provide the subjectdisclosure was willful and contumacious (see CPLR 3126; Gateway Tit. & Abstract, Inc. v Your HomeFunding, Inc., 40 AD3d 919 [2007]; Tine v Courtview Owners Corp., 40 AD3d 966 [2007]; Torres v Lowinger, 12 AD3d 363[2004]). Here, the City made a good faith effort to comply with the Supreme Court's discoveryorders. Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.