Figueroa v. City of New York

129 A.D.3d 596, 11 N.Y.S.3d 600

Opinion

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 13, 2015, which denied plaintiffs’ motion to strike defendants’ answer for failing to comply with discovery orders, unanimously affirmed, without costs.

The court providently exercised its discretion in denying the motion to strike and warning defendants that failure to appear at depositions could result in additional sanctions (see Palmenta v Columbia Univ., 266 AD2d 90, 91 [1st Dept 1999]). While it is true that defendants failed to comply with three discovery orders and to submit to depositions on multiple occasions, the court did not abuse its discretion in choosing not to exercise the “drastic remedy” of striking the answer (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1st Dept 1995]), and instead providing defendants with one additional opportunity to submit to depositions. Moreover, while the “frail health” of plaintiff Figueroa is unfortunate, since plaintiffs have asserted that he is “ready, willing, and able to submit to a deposition,” there does not appear to be any actual prejudice at this time.

Concur — Mazzarelli, J.P., Sweeny, Acosta, Clark and Kapnick, JJ.