Moore v. Eyzenberg

290 A.D.2d 542, 736 N.Y.S.2d 624, 2002 N.Y. App. Div. LEXIS 782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated July 11, 2001, which granted that branch of the plaintiffs’ motion which was to strike his answer for failure to comply with court-ordered discovery of documents.

Ordered that the order is modified by deleting therefrom the provision unconditionally granting that branch of the plaintiffs’ motion which was to strike the defendant’s answer for failure to comply with court-ordered discovery of documents, and substituting therefor a provision granting that branch of the motion to the extent of striking the defendant’s answer unless he produces documents in accordance with the order of the Supreme Court, Kings County, dated January 26, 2001, and otherwise denying the motion; as so modified, the order is affirmed, with costs to the respondents; and it is further,

Ordered that the defendant’s time to produce the documents is extended until 30 days after service upon him of a copy of this decision and order.

The record indicates that the defendant experienced difficulty in retrieving the relevant documents from a former attorney, that he had complied with previous discovery demands and court orders, and that he had already submitted to a deposition. Under the circumstances of this case we substitute our discretion for that of the trial court (see, Brady v Ottaway Newspapers, 63 NY2d 1031, 1033; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 833), to provide the defendant with one last opportunity to produce the documents in question and thereby avoid the striking of his answer. Altman, J.P., Smith, Krausman, McGinity and Cozier, JJ., concur.