Malpica v. City of New York

Appellate Division of the Supreme Court of New York

Malpica v. City of New York

161 A.D.2d 498

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 1990

StatusPublished

Cited by1 cases

This text of 161 A.D.2d 498 (Malpica v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Malpica v. City of New York, 161 A.D.2d 498 (N.Y. Ct. App. 1990).

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Opinion

Appeal from judgment, Supreme Court, Bronx County (Howard R. Silver, J.), entered April 6, 1989, granting plaintiffs’ motion to strike defendant Belco Associates, Inc.’s answer and awarding summary judgment against it in plaintiffs’ favor, sua sponte dismissed, as superseded by the appeal from the order entered January 12, 1990, without costs; and order of the same court, entered January 12, 1990, which, upon defendant Belco’s motion for renewal and/or reargument, adhered to its original determination, is unanimously affirmed, with costs.

We find that the Supreme Court did not abuse its discretion in striking defendant Belco’s answer, pursuant to CPLR 3126 (3), since the record demonstrates that Belco’s noncompliance with prior orders of the court to produce a witness for examination for trial was the result of bad faith (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506, 507). We recognize this result is a drastic remedy, but find it warranted where over the course of approximately five years Belco had misled plaintiffs into believing that it had an employee to produce for examination. It should be noted that defendant failed to comply with a prior order which had conditionally struck its answer, unless it produced the witness and paid costs and fees to plaintiffs’ counsel. Three orders, together with the imposition of sanctions, were ignored by defendant. Therefore, the striking of Belco’s answer was justified. Concur—Kupferman, J. P., Sullivan, Rosenberger, Ellerin and Smith, JJ.

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Appeal from judgment, Supreme Court, Bronx County (Howard R. Silver, J.), entered April 6, 1989, granting plaintiffs’ motion to strike defendant Belco Associates, Inc.’s answer and awarding summary judgment against it in plaintiffs’ favor, sua sponte dismissed, as superseded by the appeal from the order entered January 12, 1990, without costs; and order of the same court, entered January 12, 1990, which, upon defendant Belco’s motion for renewal and/or reargument, adhered to its original determination, is unanimously affirmed, with costs.

We find that the Supreme Court did not abuse its discretion in striking defendant Belco’s answer, pursuant to CPLR 3126 (3), since the record demonstrates that Belco’s noncompliance with prior orders of the court to produce a witness for examination for trial was the result of bad faith (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506, 507). We recognize this result is a drastic remedy, but find it warranted where over the course of approximately five years Belco had misled plaintiffs into believing that it had an employee to produce for examination. It should be noted that defendant failed to comply with a prior order which had conditionally struck its answer, unless it produced the witness and paid costs and fees to plaintiffs’ counsel. Three orders, together with the imposition of sanctions, were ignored by defendant. Therefore, the striking of Belco’s answer was justified. Concur—Kupferman, J. P., Sullivan, Rosenberger, Ellerin and Smith, JJ.

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161 A.D.2d 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malpica-v-city-of-new-york-nyappdiv-1990.

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