| Facey v Silver Express Cab Corp. |
| 2011 NY Slip Op 06549 [87 AD3d 1053] |
| September 20, 2011 |
| Appellate Division, Second Department |
| Trudy Facey, Respondent, v Silver Express Cab Corp. etal., Appellants, et al., Defendants. |
—[*1] Bradley Gillam, Melville, N.Y. (Jeffrey K. Levine of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Silver Express CabCorp. and Mohammad Akbar appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Partnow, J.), dated September 14, 2010, as granted that branch ofthe plaintiff's motion which was pursuant to CPLR 3126 to strike their answer.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof granting that branch of the plaintiff's motion which was to strike the answerof the defendants Silver Express Cab Corp. and Mohammad Akbar and substituting therefor aprovision granting that branch of the plaintiff's motion only to the extent of precluding thedefendant Mohammad Akbar from offering any testimony at trial and otherwise denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed," a court may issue anorder, inter alia, "prohibiting the disobedient party . . . from producing in evidencedesignated things or items of testimony" or "striking out pleadings" (CPLR 3126 [2], [3]). Acourt may invoke the drastic remedy of striking a pleading, however, only upon a clear showingthat the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58AD3d 656 [2009]; Paca v City ofNew York, 51 AD3d 991, 993 [2008]). Here, the record does not support a finding thatthe appellants willfully and contumaciously failed to produce the defendant Mohammad Akbarfor a deposition. Under the circumstances, the appropriate remedy was an order precluding theappellants from calling Akbar as a witness at trial (cf. Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc., 29 AD3d784, 785 [2006]). Mastro, J.P., Balkin, Chambers and Sgroi, JJ., concur.