| Sladowski-Casolaro v World Championship Wrestling, Inc. |
| 2008 NY Slip Op 00486 [47 AD3d 803] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Marianne Sladowski-Casolaro, Appellant, v WorldChampionship Wrestling, Inc., Now Known as Universal Wrestling Corp., et al.,Respondents. |
—[*1] Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine and PatrickStoltz of counsel), for respondents World Championship Wrestling, Inc., now known asUniversal Wrestling Corp., and Nassau Veterans Memorial Coliseum.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (Brandveen, J.), dated April 25, 2007, which denied hermotion, inter alia, to strike the defendants' answers pursuant to CPLR 3126 for failure to providedisclosure, and (2) an order of the same court dated July 19, 2007, which denied her motion, interalia, to compel the defendant Nassau Veterans Memorial Coliseum to produce another employeefor a deposition and granted the defendants' cross motion for a protective order.
Ordered that the orders are affirmed, with one bill of costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter withinthe discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Joseph v Iannace, 6 AD3d 502,503 [2004]; Ordonez v Guerra, 295 AD2d 325, 326 [2002]). Here, the court did notimprovidently exercise its discretion in denying that branch of the plaintiff's motion which was tostrike the defendants' answers as the plaintiff failed to demonstrate that any purported failure onthe part of the defendants to comply with a disclosure order was willful, deliberate, andcontumacious conduct or its equivalent (see Emanuel v Broadway Mall Props., 293AD2d 708, 709 [2002]; Poulas v U-Haul Intl., 288 AD2d 202 [2001]). [*2]The record demonstrates that the defendants had complied with all,or nearly all, of the plaintiff's demands.
Moreover, the court did not improvidently exercise its discretion in denying that branch ofthe plaintiff's motion which was to compel the defendant Nassau Veterans Memorial Coliseum(hereinafter the Coliseum) to produce an additional witness for a deposition. A corporate entityhas the right to designate, in the first instance, the employee who shall be examined (seeBarone v Great Atl. & Pac. Tea Co., 260 AD2d 417 [1999]; Mercado v Alexander,227 AD2d 391 [1996]; Defina v Brooklyn Union Gas Co., 217 AD2d 681, 682[1995]; Tower v Chemical Bank, 140 AD2d 514 [1988]). The plaintiff failed to sustainher burden of demonstrating that the Coliseum representative who had already been deposed hadinsufficient knowledge, or was otherwise inadequate, and that there was a substantial likelihoodthat the persons sought by the plaintiff for additional depositions possessed information whichwas material and necessary to the prosecution of the case (see Barone v Great Atl. & Pac. TeaCo., 260 AD2d 417 [1999]; Saxe v City of New York, 250 AD2d 751 [1998];Carter v New York City Bd. of Educ., 225 AD2d 512 [1996]; Zollner v City of NewYork, 204 AD2d 626 [1994]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Santucci, Dillon andAngiolillo, JJ., concur.