Hopkins v. City of New York

2019 NY Slip Op 388

Opinion

Hopkins v City of New York (2019 NY Slip Op 00388)

Hopkins v City of New York

2019 NY Slip Op 00388

Decided on January 22, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 22, 2019
Friedman, J.P., Kapnick, Gesmer, Oing, Moulton, JJ.

8165N 102479/11

[*1] Jean Hopkins, Plaintiff-Appellant,

v

City of New York, Defendant-Respondent, New York Downtown Hospital, Defendant. [And a Third-Party Action]

Robert G. Spevack, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for respondent.

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered April 12, 2018, which, to the extent appealed from, denied plaintiff's motion to strike defendant City of New York's answer, unanimously affirmed, without costs.

The parties suspended scheduling of the deposition of the City's witness on January 14, 2014 when plaintiff withdrew its request for an EBT while other discovery disputes were resolved. Thus, the court orders prior to January 14, 2014 do not support the imposition of sanctions. We agree with Supreme Court that the City's noncompliance with subsequent disclosure orders did not give rise to an inference of willful and contumacious conduct. Given that there does not appear to be an actual prejudice to plaintiff, the court was within its discretion to provide defendant with one additional opportunity to submit to depositions before striking its answer (Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]).

We further note that at the time this motion was pending, the City offered to produce the witness at issue.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 22, 2019

CLERK