Facey v. Silver Express Cab Corp.

87 A.D.3d 1053, 929 N.Y.2d 755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 20, 2011
• Status: Published

Opinion

As a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed,” a court may issue an order, inter alia, “prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony” or “striking out pleadings” (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Paca v City of New York, 51 AD3d 991, 993 [2008]). Here, the record does not support a finding that the appellants willfully and contumaciously failed to produce the defendant Mohammad Akbar for a deposition. Under the circumstances, the appropriate remedy was an order precluding the appellants from calling Akbar as a witness at trial (cf. Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc., 29 AD3d 784, 785 [2006]). Mastro, J.E, Balkin, Chambers and Sgroi, JJ., concur.