Corrigan v. New York City Transit Authority

2016 NY Slip Op 7594, 144 A.D.3d 495, 40 N.Y.S.3d 760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2016
• Docket: 2196N 106473/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 15, 2014, which granted plaintiffs’ motion to strike the answer and for sanctions pursuant to 22 NYCRR 130-1.1 or, in the alternative, to dismiss the affirmative defenses, preclude defendants from offering evidence, and grant summary judgment in plaintiffs’ favor, only to the extent of directing defendants to produce certain discovery items within 90 days and granting plaintiffs a missing witness or evidence charge in the event defendants fail to do so, unanimously affirmed, without costs.

While defendants failed to respond to certain discovery requests and to comply with certain aspects of discovery orders, upon our review of the record, we agree with the motion court’s conclusion that these failures were not wilful or contumacious or in bad faith and therefore did not warrant the drastic sanction of striking the answer or precluding defendants from offering evidence at trial (see Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 [1st Dept 2003]). In response to plaintiffs’ discovery demands, defendants produced, inter alia, photographs, reports, and correspondence prepared by both their employees and police officers who responded to the scene, maintenance and repair records and employee logs for 14 months preceding the accident, and 10 employees for depositions.

Concur—Renwick, J.R, Moskowitz, Kapnick, Kahn and Gesmer, JJ.