| Messer v Keyspan Energy Delivery, Inc. |
| 2008 NY Slip Op 09368 [56 AD3d 738] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Richard Messer, Appellant, v Keyspan Energy Delivery,Inc., et al., Defendants, and New York City Transit Authority,Respondent. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(Holder, J.), dated January 22, 2008, as only conditionally granted that branch of his motionwhich was pursuant to CPLR 3126 to strike the answer of the defendant New York City TransitAuthority unless it produced two named witnesses for deposition and paid a sanction in the sumof $2,500 to his attorney.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in only conditionally granting thatbranch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of thedefendant New York City Transit Authority (hereinafter NYCTA). The drastic remedy of strikinga defendant's answer is not warranted where there is no clear showing that its failure to complywith discovery demands or orders was willful and contumacious (see CPLR 3126;Tine v Courtview Owners Corp., 40 AD3d 966 [2007]; Gateway Tit. & Abstract, Inc.v Your Home Funding, Inc., 40 AD3d 919 [2007]; Torres v Lowinger, 12 AD3d 363[2004]). Here, the record demonstrates that NYCTA substantially complied with its discoveryobligation under a prior court order by timely advising the plaintiff, in [*2]writing, that the two witnesses at issue were available and askingthat the plaintiff's attorney contact NYCTA's counsel to schedule the depositions (seeSullivan v Nigro, 48 AD3d 454 [2008]). Although NYCTA previously had been dilatory inmaking these witnesses available, it was within the Supreme Court's discretion to impose amonetary sanction against NYCTA in lieu of striking its answer (see CPLR 3126;O'Neill v Ho, 28 AD3d 626 [2006]; Garan v Don & Walt Sutton Bldrs., Inc., 27AD3d 521, 523 [2006]).
Moreover, contrary to the plaintiffs' contention, the doctrine of law of the case did notpreclude the Supreme Court from granting NYCTA an additional extension of time within whichto schedule the depositions (see Sullivan v Nigro, 48 AD3d 454 [2008]; Kswani vLutheran Med. Ctr., 27 AD3d 424, 425 [2006]; Clark v Great Atl. & Pac. Tea Co.,Inc., 23 AD3d 510, 511 [2005]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ.,concur.