| Almonte v Pichardo |
| 2013 NY Slip Op 02209 [105 AD3d 687] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Jeffrey Almonte et al., Respondents, v RolandoPichardo et al., Appellants. |
—[*1] Thomas D. Wilson, P.C., Brooklyn, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom (1) an order of the Supreme Court, Queens County (Taylor, J.), entered February 3,2012, which conditionally granted that branch of the plaintiffs' motion which waspursuant to CPLR 3126 to strike their answer unless, inter alia, they appeared fordepositions within a specified time, and (2) an order of the same court entered October18, 2012, which granted the plaintiffs' motion, in effect, to strike their answer and forsummary judgment on the issue of liability.
Ordered that the orders are affirmed, with one bill of costs.
On November 12, 2007, the infant plaintiff was injured when he was struck by avehicle operated by the defendant Rolando Pichardo and owned by the defendant TorigarCorp. After the defendants failed to appear for their court-ordered depositions, theplaintiffs moved pursuant to CPLR 3126 to strike the answer or for a judgment bydefault. The defendants opposed the motion. By order entered February 3, 2012, theSupreme Court conditionally granted that branch of the plaintiffs' motion which was tostrike the answer unless, inter alia, the defendants appeared for depositions within aspecified time. When the defendants failed to appear for their depositions within thespecified time period, the plaintiffs moved, in effect, to strike the answer and forsummary judgment on the issue of liability. The defendants opposed the motion. TheSupreme Court granted the motion.
A court may, inter alia, issue an order "striking out pleadings or . . .rendering a judgment by default" as a sanction against a party who "refuses to obey anorder for disclosure or wilfully fails to disclose information which the court finds oughtto have been disclosed" (CPLR 3126 [3]). While actions should be resolved on the meritswhen possible, a court may strike an answer upon a clear showing that the defendants'failure to comply with a disclosure order was the result of willful and contumaciousconduct (see Carabello vLuna, 49 AD3d 679 [2008]; Maignan v Nahar, 37 AD3d 557 [2007]; Espinal v Cityof New York, 264 AD2d 806 [1999]). Here, defense counsel asserted that he couldnot produce the individual defendant for deposition because he could not secure hiscooperation or locate him. The defendants failed to substantiate a reasonable excuse forthe individual defendant's failure to appear for a court-ordered deposition (seeSadoyan v Castro, 102 [*2]AD3d 666, 667 [2013];Carabello v Luna, 49 AD3d at 680; Duncan v Hebb, 47 AD3d 871 [2008]; Maignan vNahar, 37 AD3d at 557; Bates v Baez, 299 AD2d 382 [2002]; Robinsonv Rollins Leasing Corp., 288 AD2d 367 [2001]). Furthermore, the defendants failedto demonstrate a reasonable excuse for the corporate defendant's failure to appear for acourt-ordered deposition (seeVaz v New York City Tr. Auth., 85 AD3d 902, 903 [2011]; Commisso v Orshan, 85 AD3d845 [2011]). Accordingly, the Supreme Court providently exercised its discretion inissuing a conditional order requiring the defendants, inter alia, to appear for depositionswithin a specified time or face the sanction of striking their answer.
When the defendants failed to appear for their court-ordered depositions within thespecified time, the conditional order entered February 3, 2012, became absolute (see Wilson v Galicia Contr. &Restoration Corp., 10 NY3d 827, 830 [2008]; Zouev v City of New York, 32AD3d 850 [2006]; Marrone v Orson Holding Corp., 302 AD2d 371,371-372 [2003]). To be relieved of the adverse impact of the order striking their answer,the defendants were required to demonstrate a reasonable excuse for their failure toappear for depositions and a potentially meritorious defense (see Gibbs v St. BarnabasHosp., 16 NY3d 74, 80 [2010]; Zouev v City of New York, 32 AD3d 850 [2006];Macancela v Pekurar, 286 AD2d 320 [2001]). The defendants failed todemonstrate either. Thus, their answer was properly stricken.
As a result of having their answer stricken, the defendants were deemed to admit alltraversable allegations in the complaint, including the basic allegation of liability (seeWilson v Galicia Contr. & Restoration Corp., 10 NY3d at 830; Curiale v ArdraIns. Co., 88 NY2d 268, 269 [1996]; Rokina Opt. Co. v Camera King, 63NY2d 728, 730 [1984]). Accordingly, the Supreme Court properly granted that branch ofthe plaintiffs' motion which was for summary judgment on the issue of liability (see Francesco v EmpressAmbulance Serv., Inc., 100 AD3d 589 [2012]). Skelos, J.P., Chambers, Sgroiand Hinds-Radix, JJ., concur.