Blanding v. Return Housing Corp.

Appellate Division of the Supreme Court of New York

Blanding v. Return Housing Corp.

277 A.D.2d 92, 717 N.Y.S.2d 23, 2000 N.Y. App. Div. LEXIS 11953

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 2000

StatusPublished

Cited by1 cases

This text of 277 A.D.2d 92 (Blanding v. Return Housing Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blanding v. Return Housing Corp., 277 A.D.2d 92, 717 N.Y.S.2d 23, 2000 N.Y. App. Div. LEXIS 11953 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 31, 2000, which granted plaintiffs’ motion to strike defendants’ answer, unanimously modified, on the facts, to grant the motion only as against any defendant that does not appear for deposition within 60 days of the date of this order, and otherwise affirmed, without costs.

Plaintiffs did not conclusively show that the nonappearance for deposition of defendant driver and defendant owners of the vehicle involved in the accident, in accordance with a preliminary conference order, was willful, contumacious or in bad faith, and, accordingly, their answer should not have been unconditionally stricken (see, Christian v City of New York, 269 AD2d 135, 137). Although somewhat belated, defendants’ attorneys’ documented efforts to locate defendant driver, who is no longer in the employ of the other defendants, did not [93]*93demonstrate bad faith or contumacy. In addition, where two previous deposition dates had been adjourned, the first at plaintiffs’ behest, defendants created no protracted delay, and thus the striking of their answer was too drastic a remedy for their failure to appear at the second adjourned date (see, Hunter Mech. Corp. v Salkind, 237 AD2d 180). Concur — Tom, J, P., Mazzarelli, Ellerin, Lerner and Andrias, JJ.

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—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 31, 2000, which granted plaintiffs’ motion to strike defendants’ answer, unanimously modified, on the facts, to grant the motion only as against any defendant that does not appear for deposition within 60 days of the date of this order, and otherwise affirmed, without costs.

Plaintiffs did not conclusively show that the nonappearance for deposition of defendant driver and defendant owners of the vehicle involved in the accident, in accordance with a preliminary conference order, was willful, contumacious or in bad faith, and, accordingly, their answer should not have been unconditionally stricken (see, Christian v City of New York, 269 AD2d 135, 137). Although somewhat belated, defendants’ attorneys’ documented efforts to locate defendant driver, who is no longer in the employ of the other defendants, did not [93]*93demonstrate bad faith or contumacy. In addition, where two previous deposition dates had been adjourned, the first at plaintiffs’ behest, defendants created no protracted delay, and thus the striking of their answer was too drastic a remedy for their failure to appear at the second adjourned date (see, Hunter Mech. Corp. v Salkind, 237 AD2d 180). Concur — Tom, J, P., Mazzarelli, Ellerin, Lerner and Andrias, JJ.

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Bluebook (online)

277 A.D.2d 92, 717 N.Y.S.2d 23, 2000 N.Y. App. Div. LEXIS 11953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanding-v-return-housing-corp-nyappdiv-2000.

Opinion

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