Austin v. Coin Devices Corp.

234 A.D.2d 155, 651 N.Y.S.2d 33, 1996 N.Y. App. Div. LEXIS 12541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1996
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered May 29, 1996, which granted plaintiffs’ motion pursuant to CPLR 3126 to strike defendant’s answer, unanimously affirmed, with costs.

Defendants’ failure to advise the court and plaintiffs any time prior to the motion to strike of the routine destruction of documents they had been ordered to produce, or to proffer any excuse for their failure to comply with the court-ordered discovery, indicates willful, contumacious and evasive conduct with respect to plaintiffs’ discovery rights (Anteri v NRS Constr. Corp., 117 AD2d 696, 698). This was aggravated by the circumstances that the documents were still extant when first demanded by plaintiff (Sawh v Bridges, 120 AD2d 74, 79, appeal dismissed 69 NY2d 852), and that defendants’ delay in producing an employee eyewitness resulted in the latter’s unavailability (Oberlander v Levi, 207 AD2d 437). We have considered defendants’ remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Wallach, Tom and Mazzarelli, JJ.