Perez v. New York City Transit Authority

73 A.D.3d 529, 901 N.Y.S.2d 38

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered on or about April 1, 2009, which denied plaintiffs motion to strike the answer, sanctioned defendant Transit Authority in the amount of $2,500, and directed that a negative inference be given at trial with regard to documents that were destroyed, unanimously modified, on the facts, to increase the sanction to $7,500, and otherwise affirmed, without costs.

The drastic sanction of striking a pleading is inappropriate without a showing that failure to comply with disclosure obligations was wilful, contumacious or in bad faith (Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 [2003]). While defendants did not timely comply with the court-ordered deadlines, there has been no clear showing that such failure was so motivated. Morever, plaintiff has failed to demonstrate how he is prejudiced by the absence of the destroyed documents. However, in our view, and as defendants themselves acknowledge, the monetary sanction imposed for defendants’ delay was inadequate as indicated. Concur—Tom, J.P., Saxe, Friedman, Nardelli and Catterson, JJ.