Mateo v. City of New York

Appellate Division of the Supreme Court of New York

Mateo v. City of New York

274 A.D.2d 337, 711 N.Y.S.2d 396, 2000 N.Y. App. Div. LEXIS 8047

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

DecidedJuly 20, 2000

StatusPublished

Cited by5 cases

This text of 274 A.D.2d 337 (Mateo 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.

Bluebook

Mateo v. City of New York, 274 A.D.2d 337, 711 N.Y.S.2d 396, 2000 N.Y. App. Div. LEXIS 8047 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 10, 1999, which struck defendant-appellant’s answer for failure to comply with court-ordered discovery, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the answer reinstated. Appeal from order, same court and Justice, entered November 22, 1999, which denied defendant-appellant’s motion seeking to vacate the prior order, unanimously dismissed, without costs, as moot.

Striking a pleading is a drastic remedy and is only warranted “where a clear showing has been made that the noncompliance with a discovery order was willful, contumacious or due to bad faith” (Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193; see also, Washington v Alco Auto Sales, 199 AD2d 165). Here, defendant-appellant’s failure to comply with the discovery order and appear for deposition was due to law office failure. There is no evidence indicating willful or contumacious conduct or an intent to abandon the defense. The motion court, therefore, erred in striking the answer. Concur — Tom, J. P., Mazzarelli, Lerner and Buckley, JJ.

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—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 10, 1999, which struck defendant-appellant’s answer for failure to comply with court-ordered discovery, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the answer reinstated. Appeal from order, same court and Justice, entered November 22, 1999, which denied defendant-appellant’s motion seeking to vacate the prior order, unanimously dismissed, without costs, as moot.

Striking a pleading is a drastic remedy and is only warranted “where a clear showing has been made that the noncompliance with a discovery order was willful, contumacious or due to bad faith” (Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193; see also, Washington v Alco Auto Sales, 199 AD2d 165). Here, defendant-appellant’s failure to comply with the discovery order and appear for deposition was due to law office failure. There is no evidence indicating willful or contumacious conduct or an intent to abandon the defense. The motion court, therefore, erred in striking the answer. Concur — Tom, J. P., Mazzarelli, Lerner and Buckley, JJ.

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Bluebook (online)

274 A.D.2d 337, 711 N.Y.S.2d 396, 2000 N.Y. App. Div. LEXIS 8047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mateo-v-city-of-new-york-nyappdiv-2000.

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