| Perez v New York City Tr. Auth. |
| 2010 NY Slip Op 04107 [73 AD3d 529] |
| May 13, 2010 |
| Appellate Division, First Department |
| Hector Perez, Appellant, v New York City TransitAuthority et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for respondents.
Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about April 1,2009, which denied plaintiff's motion to strike the answer, sanctioned defendant TransitAuthority in the amount of $2,500, and directed that a negative inference be given at trial withregard to documents that were destroyed, unanimously modified, on the facts, to increase thesanction to $7,500, and otherwise affirmed, without costs.
The drastic sanction of striking a pleading is inappropriate without a showing that failure tocomply with disclosure obligations was wilful, contumacious or in bad faith (Cespedes vMike & Jac Trucking Corp., 305 AD2d 222 [2003]). While defendants did not timelycomply with the court-ordered deadlines, there has been no clear showing that such failure wasso motivated. Morever, plaintiff has failed to demonstrate how he is prejudiced by the absence ofthe destroyed documents. However, in our view, and as defendants themselves acknowledge, themonetary sanction imposed for defendants' delay was inadequate as indicated.Concur—Tom, J.P., Saxe, Friedman, Nardelli and Catterson, JJ.