Athanasiou v. First National City Bank US Corp.

Appellate Division of the Supreme Court of New York

Athanasiou v. First National City Bank US Corp.

225 A.D.2d 726, 640 N.Y.2d 194, 640 N.Y.S.2d 194, 1996 N.Y. App. Div. LEXIS 3158

Appellate Division of the Supreme Court of the State of New York·Decided March 25, 1996·Published·Cited by 4 cases

Opinion

CPLR 3126 allows the court to "make such orders * * * as are just”, including an order striking out pleadings when a party willfully disobeys a discovery order. However, "[t]he drastic sanction of unconditionally striking an answer * * * should not be invoked unless the resisting party’s default is clearly shown to be deliberate and contumacious” (Nudelman v New York City Tr. Auth., 172 AD2d 503; see, Tschernia v Embanque Capital Corp., 161 AD2d 585, 586-587; Read v Dickson, 150 AD2d 543, 544). On this record, the plaintiffs failed to clearly show that the defendant willfully and contumaciously refused to comply with the court’s order dated January 13, 1995, directing it to produce a witness with knowledge of certain facts. Therefore, the court erred in striking the [727] defendant’s answer (see, Williams v Bryant, 196 AD2d 815, 816; Nudelman v New York City Tr. Auth., supra).

However, in view of delay in discovery caused by the defendant’s failure to produce the witness in question, we are of the view that a $1,000 sanction against the defendant is warranted. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.

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CPLR 3126 allows the court to "make such orders * * * as are just”, including an order striking out pleadings when a party willfully disobeys a discovery order. However, "[t]he drastic sanction of unconditionally striking an answer * * * should not be invoked unless the resisting party’s default is clearly shown to be deliberate and contumacious” (Nudelman v New York City Tr. Auth., 172 AD2d 503; see, Tschernia v Embanque Capital Corp., 161 AD2d 585, 586-587; Read v Dickson, 150 AD2d 543, 544). On this record, the plaintiffs failed to clearly show that the defendant willfully and contumaciously refused to comply with the court’s order dated January 13, 1995, directing it to produce a witness with knowledge of certain facts. Therefore, the court erred in striking the [727] defendant’s answer (see, Williams v Bryant, 196 AD2d 815, 816; Nudelman v New York City Tr. Auth., supra).

However, in view of delay in discovery caused by the defendant’s failure to produce the witness in question, we are of the view that a $1,000 sanction against the defendant is warranted. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.

Athanasiou v. First National City Bank US Corp., 225 A.D.2d 726, 640 N.Y.2d 194, 640 N.Y.S.2d 194, 1996 N.Y. App. Div. LEXIS 3158 (N.Y. Ct. App. 1996).

Pincite

225 A.D.2d 726 (Athanasiou v. First National City Bank US Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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