| Carabello v Luna |
| 2008 NY Slip Op 02547 [49 AD3d 679] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Roger Carabello, Respondent, v Stanley Luna, Respondent,and Madani Masjid, Inc., et al., Appellants. |
—[*1] David Edelman, P.C., New York, N.Y. (Noreen M. Giusti of counsel), forplaintiff-respondent. Nicoletti Gonson Spinner & Owen, LLP, New York, N.Y. (Edward L. Owen III of counsel),for defendant-respondent.
In an action to recover damages for personal injuries, the defendants Madani Masjid, Inc.,Amir Hossain, and Delawar Hossain, appeal, as limited by their brief, from so much of an orderof the Supreme Court, Queens County (O'Donoghue, J.), dated April 6, 2007, as granted thosebranches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the answer of thedefendants Madani Masjid, Inc., and Delawar Hossain for failure to comply with discoveryorders and, in effect, for leave to enter a default judgment against those defendants.
Ordered that the appeal by the defendant Amir Hossain is dismissed, without costs ordisbursements, as that defendant is not aggrieved by the order appealed from (see CPLR5511); and it is further,
Ordered that the order is modified, on the law, without costs or disbursements, by deletingthe provision thereof granting those branches of the motion which were to strike the answerinsofar as interposed by the defendant Madani Masjid, Inc., and, in effect, for leave to enter adefault judgment against that defendant and substituting therefor a provision denying thosebranches of the motion; as so modified, the order is affirmed insofar as reviewed.[*2]
A court may, inter alia, issue an order "striking outpleadings 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 courtfinds ought to have been disclosed" (CPLR 3126 [3]). "To invoke the drastic remedy of strikingan answer, it must be shown that a defendant's failure to comply with a disclosure order was theresult of willful and contumacious conduct" (Maignan v Nahar, 37 AD3d 557 [2007]; see Espinal v City ofNew York, 264 AD2d 806 [1999]).
Here, in opposition to the plaintiff's motion to strike the answer of the defendant DelawarHossain (hereinafter Delawar), defense counsel asserted that her office was unable to locateDelawar and therefore, could not produce him for a deposition as ordered by the court. Contraryto counsel's contention, the mere fact that Delawar had disappeared or made himself unavailabledid not preclude the court from striking the answer insofar as interposed by him for failure toappear at a court-ordered deposition (seeMaignan v Nahar, 37 AD3d 557 [2007]; Robinson v Rollins Leasing Corp., 288AD2d 367 [2001]; Torres v Martinez, 250 AD2d 759 [1998]). Thus, the Supreme Courtproperly granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strikethe answer of the defendant Delawar for failure to comply with discovery orders. In addition, thecourt properly granted that branch of the motion which was, in effect, to enter a default judgmentagainst that defendant based upon the complaint, the affirmations submitted in support of themotion, and the depositions of the plaintiff and the defendant Amir Hossain (see Litvinskiy v May Entertainment Group,Inc., 44 AD3d 627 [2007]; Fappiano v City of New York, 5 AD3d 627, 628 [2004]; seealso CPLR 3215 [f]; Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]).
However, the court erred in striking the answer insofar as interposed by the defendantMadani Masjid, Inc. (hereinafter MMI). The plaintiff proffered no evidence that MMI exercisedcontrol over Delawar and thus was responsible for Delawar's failure to appear for his deposition(see Tolz v Valente, 39 AD3d737, 738 [2007]; Moriates v Powertest Petroleum Co., 114 AD2d 888, 890 [1985]).Therefore, MMI should not have been sanctioned for failing to produce a party over which it hadno control (see Tolz v Valente, 39AD3d 737, 738 [2007], supra; Moriates v Powertest Petroleum Co., 114 AD2d 888,890 [1985], supra). Accordingly, that branch of the plaintiff's motion which was, ineffect, for leave to enter a default judgment against MMI also should not have been granted.Prudenti, P.J., Skelos, Miller, Covello and McCarthy, JJ., concur.