Forbes v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Forbes v. New York City Transit Authority

88 A.D.3d 546, 931 N.Y.2d 220

Appellate Division of the Supreme Court of the State of New York·Decided October 18, 2011·Published·Cited by 8 cases

Opinion

Denial of the motion was proper inasmuch as defendants’ proffered excuse of “law office failure” was not credible (see [547] Gonzalez v Praise the Lord Dental, 79 AD3d 550 [2010]). Defendants’ pattern of noncompliance with court-ordered disclosure over a period of several years gives rise to an inference of willful and contumacious conduct that warranted the striking of the answer (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Bryant v New York City Hous. Auth., 69 AD3d 488 [2010]). Furthermore, the discovery responses that defense counsel claims would have demonstrated compliance with the discovery orders postdated the return date of the motion (see Gonzalez at 550).

Defendants also failed to demonstrate a meritorious defense to the action. The evidence offered solely on reply is entitled to no consideration by a court (see Guzman v Mike’s Pipe Yard, 35 AD3d 266 [2006]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 626 [1995]). Concur — Saxe, J.P., Friedman, Moskowitz and Freedman, Richter JJ.

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Denial of the motion was proper inasmuch as defendants’ proffered excuse of “law office failure” was not credible (see [547] Gonzalez v Praise the Lord Dental, 79 AD3d 550 [2010]). Defendants’ pattern of noncompliance with court-ordered disclosure over a period of several years gives rise to an inference of willful and contumacious conduct that warranted the striking of the answer (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Bryant v New York City Hous. Auth., 69 AD3d 488 [2010]). Furthermore, the discovery responses that defense counsel claims would have demonstrated compliance with the discovery orders postdated the return date of the motion (see Gonzalez at 550).

Defendants also failed to demonstrate a meritorious defense to the action. The evidence offered solely on reply is entitled to no consideration by a court (see Guzman v Mike’s Pipe Yard, 35 AD3d 266 [2006]; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 626 [1995]). Concur — Saxe, J.P., Friedman, Moskowitz and Freedman, Richter JJ.

Forbes v. New York City Transit Authority, 88 A.D.3d 546, 931 N.Y.2d 220 (N.Y. Ct. App. 2011).

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Opinion

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