| Cobenas v Ginsburg Dev. Cos., LLC |
| 2010 NY Slip Op 05718 [74 AD3d 1269] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Rigo Cobenas et al., Plaintiffs, v Ginsburg DevelopmentCompanies, LLC, et al., Defendants/Second Third-Party Plaintiffs-Respondents, and LeopoldFraming Corp., Defendant/Third-Party Plaintiff-Respondent. Mauricio Soares, Third-PartyDefendant/Second Third-Party Defendant-Appellant. (And Third- and Fourth-PartyActions.) |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP (Shaub, Ahmuty, Citrin & Spratt, LLP,Lake Success, N.Y. [Christopher Simone, Gerard S. Rath, and Deirdre E. Tracey] of counsel),for defendants/second-third-party plaintiffs-respondents. Goldberg Seglla, LLP (Gannon, Rosenfarb & Moskowitz, New York, N.Y. [Peter J. Gannon]of counsel), for defendant/third-party plaintiff-respondent. Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP, New York, N.Y. (Richard M.Winograd of counsel), for plaintiff Rigo Cobenas.
In an action to recover damages for personal injuries, etc., the third-party defendantMauricio Soares appeals from an order of the Supreme Court, Orange County (Lubell, J.),entered June 3, 2009, which granted the motion of the defendant third-party plaintiff LeopardFraming Corp., and the separate motion of the defendants second third-party plaintiffs, GinsburgDevelopment Companies, LLC, Ginsburg Development Companies Corp., GDC Construction &Development Corp. and Fairways Wallkill, LLC, pursuant to CPLR 3126 (3) to strike hisrespective answers to the third-party complaint and the second third-party complaint for failureto appear for a deposition, and directed the entry of default judgments against him.
Ordered that the order is modified, on the law, by deleting the provisions granting therespective motions of the defendant/third-party plaintiff Leopard Framing Corp., and thedefendants/second third-party plaintiffs Ginsburg Development Companies, LLC, GinsburgDevelopment Companies Corp., GDC Construction & Development Corp., and FairwaysWallkill, LLC, pursuant to CPLR 3126 (3) to strike the respective answers of Mauricio Soares tothe third-party complaint and the second third-party complaint for failure to appear for adeposition and directing the entry of default judgments against him and substituting therefor aprovision granting [*2]the motions to the extent of precludingMauricio Soares from offering any testimony at trial; as so modified, the order is affirmed, withone bill of costs to the appellant payable by the respondents appearing separately and filingseparate briefs.
In the absence of evidence that the appellant willfully and contumaciously failed to appearfor an examination before trial, the Supreme Court should not have stricken his answer (seeCambry v Lincoln Gardens, 50 AD3d 1081 [2008]; Conciatori v Port Auth. of N.Y. &N.J., 46 AD3d 501 [2007]). The appropriate remedy was to preclude the appellant fromoffering any testimony at trial (see Patel v DeLeon, 43 AD3d 432 [2007]; Williams vRyder TRS, Inc., 29 AD3d 784 [2006]). Mastro, J.P., Dillon, Florio and Balkin, JJ., concur.