| Cason v Smith |
| 2014 NY Slip Op 06412 [120 AD3d 1554] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Tremain Cason, Respondent, v Kirby Sy Smith, III, etal., Appellants. |
Demarie & Schoenborn, PC, Buffalo, Lawrence A. Schulz, Orchard Park, fordefendants-appellants.
Vinal & Vinal, P.C., Buffalo (Jeanne M. Vinal of counsel), forplaintiff-respondent.
Appeal from an order of the Erie County Court (Sheila A. DiTullio, J.), enteredMarch 22, 2013. The order affirmed orders of the Buffalo City Court entered June 12,2007, April 11, 2008, and April 28, 2011, and affirmed an order and judgment (onepaper) of the Buffalo City Court entered January 5, 2011.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by denying in part plaintiff's motion to strike defendants' answer and reinstating theanswer insofar as interposed by defendant Werner Enterprises, Inc., resolving the issue ofnegligence in favor of plaintiff, and directing defendant Werner Enterprises, Inc. to pay$1,500 to plaintiff's counsel, and as modified the order is affirmed without costs and thematter is remitted to Buffalo City Court for further proceedings in accordance with thefollowing memorandum: Plaintiff commenced this action seeking to recover damages forinjuries he sustained when the bus he was operating collided with a tractor-trailer ownedby defendant Werner Enterprises, Inc. (Werner) and operated by defendant Kirby SySmith, III (Smith). The matter was transferred to Buffalo City Court for disposition. Asdefendants implicitly concede, City Court did not abuse its discretion in grantingplaintiff's motion to strike the answer insofar as interposed by Smith based upon Smith'sfailure to appear for a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 679-680 [2008];Moriates v Powertest Petroleum Co., 114 AD2d 888, 889-890 [1985], lvdismissed 67 NY2d 603, 757 [1986]). We agree with defendants, however, that thecourt abused its discretion in striking the answer insofar as interposed by Werner.Initially, we note that there was no basis for the court to sanction Werner for failing toproduce Smith inasmuch as Smith left Werner's employ prior to commencement of theaction, and plaintiff "proffered no evidence that [Werner] exercised control over [Smith]and thus was responsible for [Smith]'s failure to appear for his deposition"(Carabello, 49 AD3d at 680; see Moriates, 114 AD2d at 890; see generally Hann v Black, 96AD3d 1503, 1503 [2012]). With respect to Werner's failure to comply with a priororder to produce a corporate representative for deposition, it is well established that"[a]lthough the nature and degree of a sanction for a party's failure to comply withdiscovery generally is a matter reserved to the sound discretion of the trial court, thedrastic remedy of striking an answer is inappropriate absent a showing that the failure tocomply is willful, contumacious, or in bad faith" (Green v Kingdom Garage Corp., 34 AD3d 1373, 1374[2006]; see Mosey v County ofErie, 117 AD3d 1381, 1384 [2014]). "Once a moving party establishes that thefailure to comply with a disclosure order was willful, contumacious or in bad faith, theburden shifts to the nonmoving party to offer a reasonable excuse" (WILJEFF, LLC v United RealtyMgt. Corp., 82 AD3d 1616, 1619 [2011]). Here, plaintiff met that initial burden,"thereby shifting the burden to defendant[s] to offer a reasonable excuse" (Hill v Oberoi, 13 AD3d1095, 1096 [2004]). We agree with Werner, however, that it offered a reasonableexcuse for its failure to comply with the prior order. Plaintiff sought to depose a Wernerrepresentative solely in connection with his cause of action involving negligent hiring,training, and supervision, and such discovery was no longer relevant after Wernerconceded the facts necessary to establish liability as a matter of law based on respondeatsuperior (see [*2]generally Ruiz v Cope, 119 AD3d 1333, 1335[2014]; Leftenant v City of NewYork, 70 AD3d 596, 597 [2010]; Ashley v City of New York, 7 AD3d 742, 743 [2004]). Wethus conclude that the court abused its discretion in granting that part of plaintiff'smotion to strike the answer insofar as asserted by Werner. Instead, we impose the lessersanction of resolving the issue of negligence in plaintiff's favor (see CPLR 3126[1]; Beatty v First Atl. Hous. Corp., 209 AD2d 658, 660 [1994]), and directingWerner to pay the sum of $1,500 to plaintiff's counsel (see L&L Auto Distribs.& Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734, 736 [2011]; Adzer v Rudin Mgt. Co., Inc.,50 AD3d 1070, 1072 [2008]). We therefore modify the order accordingly, and weremit the matter to City Court for a trial on serious injury and proximate cause (seeRuzycki v Baker, 301 AD2d 48, 51 [2002]) and, if necessary, a new trial ondamages. Based upon our determination, we do not address defendants' remainingcontentions. Present—Scudder, P.J., Peradotto, Carni and Lindley, JJ.