Hamilton v. Ocean Management & Realty Corp.

288 A.D.2d 262, 732 N.Y.S.2d 595, 2001 N.Y. App. Div. LEXIS 10936

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Ocean Management & Realty Corp. appeals from (1) an order of the Supreme Court, Kings County (Harkavy, J.), dated June 19, 2000, which granted the plaintiffs motion to strike its answer unless it appeared for a deposition on or before September 15, 2000, and (2) an order of the same court, dated September 18, 2000, which, sua sponte, struck its answer for failure to produce a witness for deposition.

Ordered that on the Court’s own motion, the notice of appeal from the order dated September 18, 2000, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the orders are affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in conditionally granting the motion to strike the answer of the defendant Ocean Management & Realty Corp., and, upon its failure to produce a witness for deposition, striking its answer (see, Valentino v Romero, 255 AD2d 505; Cavallino v Sonsky, 251 AD2d 361; Rowe v Lee Gee Sook, 224 AD2d 404). Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.