| Argo v Queens Surface Corp. |
| 2009 NY Slip Op 00320 [58 AD3d 656] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Delores Argo, Respondent, v Queens Surface Corp. et al.,Appellants. |
—[*1] Ira M. Perlman and Robert D. Rosen, Garden City, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), datedAugust 7, 2008, as granted the plaintiff's motion pursuant to CPLR 3126 to strike the answer.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exerciseof discretion, with costs, and the plaintiff's motion pursuant to CPLR 3126 to strike the answer isdenied.
A court may, inter alia, issue an order "striking out pleadings or . . . rendering ajudgment by default" as a sanction against a party who "refuses to obey an order for disclosure orwilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR3126 [3]; see Carabello v Luna, 49AD3d 679 [2008]). Striking a defendant's answer is a drastic remedy which is "inappropriateabsent a clear showing that failure to comply with discovery demands was willful andcontumacious" (Paca v City of NewYork, 51 AD3d 991, 993 [2008], quoting Brandes v North Shore Univ. Hosp., 22 AD3d 778 [2005]; see Jenkins v City of New York, 13AD3d 342 [2004]).
Under the circumstances of this case, the Supreme Court improvidently exercised itsdiscretion in granting the plaintiff's motion pursuant to CPLR 3126 to strike the defendants'answer for their failure to comply with a stipulation dated March 7, 2008 directing them toproduce certain records and reports. The plaintiff did not show that the defendants engaged inwillful or contumacious conduct by failing to provide items "which are in [their] possession,custody or [*2]control" (CPLR 3120 [1] [i]). Indeed, thedefendants demonstrated that the records and reports that the plaintiff sought with respect to thedefendant Queens Surface Corp.—a bus company no longer in existence—werenow in the possession of its successor, the MTA Bus Co., which company was not under theircontrol. Accordingly, the defendants cannot be compelled to produce or be sanctioned for failingto produce information which they do not possess or which does not exist (see Carabello vLuna, 49 AD3d at 680; Tolz vValente, 39 AD3d 737, 738 [2007]; Corriel v Volkswagen of Am., 127 AD2d729, 731 [1987]). Fisher, J.P., Covello, Balkin and Belen, JJ., concur.