Blake v. Mamadou

281 A.D.2d 301, 722 N.Y.S.2d 158, 2001 N.Y. App. Div. LEXIS 3042

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 10, 2000, which, inter alia, struck the answer of defendant Barry Mamadou, unanimously modified, on the law and the facts, to vacate the striking of the answer, and in lieu thereof to direct that defendant Mamadou is precluded from testifying at trial unless he appears for an examination before trial, and otherwise affirmed, without costs.

The record provides indication that defendant Mamadou’s failure to appear for deposition was not willful, but resulted from his attorney’s inability to locate him at his last known address. Although a client has an obligation to remain in communication with his attorney, defendant’s failure to communicate is not by itself a sufficient ground upon which to strike his answer (see, Heyward v Benyarko, 82 AD2d 751). Concur — Sullivan, P. J., Rosenberger, Nardelli, Tom and Mazzarelli, JJ.