| Holloway v Station Bar Corp. |
| 2013 NY Slip Op 08408 [112 AD3d 784] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Kyana Holloway, Appellant, v Station Bar Corp.,Doing Business as Bartinis, Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas Hurzeler ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Partnow,J.), dated November 27, 2012, as granted that branch of her motion which was pursuantto CPLR 3126 only to the extent of precluding the defendant from offering any testimonyat trial from two of its employees named "Juan" and "Jose."
Ordered that the order is affirmed insofar as appealed from, with costs.
As a sanction against a party who "refuses to obey an order for disclosure or wilfullyfails to disclose information which the court finds ought to have been disclosed," a courtmay issue an order, inter alia, "prohibiting the disobedient party . . . fromproducing in evidence designated things or items of testimony" or "striking outpleadings" (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking apleading, however, only upon a clear showing that the failure to comply withcourt-ordered discovery was willful and contumacious (see Facey v Silver Express CabCorp., 87 AD3d 1053 [2011]; Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc.,29 AD3d 784, 785 [2006]). Here, the record does not support a finding that thedefendant willfully and contumaciously failed to produce for depositions two of itsformer employees identified only as "Juan" and "Jose." Accordingly, the Supreme Courtprovidently exercised its discretion in granting that branch of the plaintiff's motion whichwas pursuant to CPLR 3126 only to the extent of precluding the defendant from calling"Juan" and "Jose" as witnesses at trial (see Viteritti v Gelfand, 289 AD2d 566,567 [2001]).
The plaintiff's remaining contention is without merit. Skelos, J.P., Dickerson, Lottand Austin, JJ., concur.