Acevedo v. Yuen-Fat Chan

289 A.D.2d 10, 733 N.Y.S.2d 603, 2001 N.Y. App. Div. LEXIS 11614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about July 11, 2000, which granted plaintiff’s motion for an order striking defendants’ answer for failure to appear at a deposition as directed in a preliminary conference order, and denied defendants’ cross motion to dismiss the complaint for failure to produce medical authorizations and other documents as directed in the same preliminary conference order, unanimously modified, on the facts, to deny plaintiff’s motion to strike, reinstate defendants’ answer, direct plaintiff to provide outstanding discovery within 30 days of the date of this order, and direct defendants to appear for depositions within 30 days after discovery from plaintiff is complete, and otherwise affirmed, without costs.

Defendants’ failure to appear at their deposition, which was scheduled by the preliminary conference court on the same day as plaintiff’s deposition, was not willful or contumacious where plaintiff had failed to comply with the directive in the same preliminary conference order that he provide medical authorizations and other documents by a date prior to the scheduled depositions, and where defendants concededly have priority of deposition (cf., Cox v City of New York, 287 AD2d 391). Concur — Sullivan, P. J., Williams, Ellerin, Lerner and Saxe, JJ.