Reitte v. Entermy Cab Corp.

162 A.D.2d 259, 556 N.Y.S.2d 617, 1990 N.Y. App. Div. LEXIS 7374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1990
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Hansel McGee, J.), entered on or about June 2, 1989, granting plaintiff’s motion to strike defendant’s answer and setting the matter down for an inquest on damages, unanimously affirmed, with costs and disbursements.

That the defendant has disappeared or made himself unavailable provides no basis for denying a motion to strike his answer, particularly in the face of continued defaults and requests for appearance for examinations before trial. (Moriates v Powertest Petroleum Co., 114 AD2d 888; Foti v Suero, 97 AD2d 748.)

In this instance, the defendant was ordered to produce for deposition its principal, Michael Starbuck. After failing to produce him at the court-ordered deposition, a conditional order was entered providing for the imposition of sanctions should the witness not be produced. The witness once again failed to appear. In light of these repeated failures and the admission that, in fact, defense counsel had no contact with the witness after answering, there was ample support for the court to strike the answer and set the matter down for a hearing on the issue of damages. Concur—Sullivan, J. P., Milonas, Smith and Rubin, JJ.