Davis v. City of New York

205 A.D.2d 442, 613 N.Y.S.2d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1994
• Status: Published

Opinion

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered on or about April 13, 1993, which denied plaintiff’s motion to strike defendant’s answer, unanimously modified, on the law, the facts and in the exercise of discretion, to impose a sanction in the amount of $1000 upon defendant-respondent, payable to plaintiff’s counsel, and otherwise affirmed, without costs.

While it was not an abuse of discretion for the IAS Court to refuse to order the drastic remedy of striking defendant’s answer, in light of defendant’s inexcusable delay in providing discovery and its repeated failure to appear for deposition in violation of court orders, some sanction should have been imposed as recompense for the cost of the multiple motions necessitated by defendant’s dilatory and obstructive conduct. Accordingly, the order is modified to the extent of imposing costs on respondent in the sum of $1000, payable to plaintiff’s counsel. Concur—Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Tom, JJ.