Delgado v. City of New York

47 A.D.3d 550, 850 N.Y.S.2d 401

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 24, 2006, which, insofar as appealed from as limited by the briefs, confirmed the recommendation of a judicial hearing officer to deny plaintiff’s motion to strike the answers of defendants City of New York, Joseph Richardson and Steven Fischer, unanimously affirmed, without costs.

The drastic remedy of striking defendants’ answers was properly denied for lack of a clear showing that defendants’ failure to comply with the court’s prior discovery orders was willful or contumacious (see CPLR 3126; see also Frye v City of New York, 228 AD2d 182 [1996]; Dauria v City of New York, 127 AD2d 459 [1987]). The record evidence demonstrates that defendant City offered a reasonable excuse for its failure to produce several retired officers for depositions, that defendant Richardson appeared for his deposition, and that the circumstances presented do not warrant the striking of defendant Fischer’s answer. Concur—Lippman, EJ., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.