Rivera v. City of New York

Appellate Division of the Supreme Court of New York

Rivera v. City of New York

128 A.D.3d 567, 8 N.Y.S.3d 567

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

DecidedMay 21, 2015

Docket15187 100299/10

StatusPublished

This text of 128 A.D.3d 567 (Rivera 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

Rivera v. City of New York, 128 A.D.3d 567, 8 N.Y.S.3d 567 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered April 3, 2014, which, to the extent appealed from as limited by the briefs, granted defendant City of New York’s motion to strike the complaint, unanimously affirmed, without costs.

Plaintiffs noncompliance with six court orders issued in a two-year period directing her to appear for a deposition culminated in an order directing her to appear for a deposition and stating that failure to appear would result in the striking of the complaint (see CPLR 3126). Plaintiff claims that it was actually defendant’s counsel who was not prepared to proceed on the final date scheduled for her deposition, but offered no documentation to support this claim other than plaintiffs counsel’s secretary’s affidavit, which was not sufficient under the circumstances here, including the history of her failing to appear for at least seven previously scheduled depositions. Thus, she failed to demonstrate a reasonable excuse for her failure to appear so as to relieve herself of the sanction imposed by the conditional order (see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]; Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]). Concur — Tom, J.P., Friedman, DeGrasse, Richter and Kapnick, JJ.

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Order, Supreme Court, New York County (Margaret A. Chan, J.), entered April 3, 2014, which, to the extent appealed from as limited by the briefs, granted defendant City of New York’s motion to strike the complaint, unanimously affirmed, without costs.

Plaintiffs noncompliance with six court orders issued in a two-year period directing her to appear for a deposition culminated in an order directing her to appear for a deposition and stating that failure to appear would result in the striking of the complaint (see CPLR 3126). Plaintiff claims that it was actually defendant’s counsel who was not prepared to proceed on the final date scheduled for her deposition, but offered no documentation to support this claim other than plaintiffs counsel’s secretary’s affidavit, which was not sufficient under the circumstances here, including the history of her failing to appear for at least seven previously scheduled depositions. Thus, she failed to demonstrate a reasonable excuse for her failure to appear so as to relieve herself of the sanction imposed by the conditional order (see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]; Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]). Concur — Tom, J.P., Friedman, DeGrasse, Richter and Kapnick, JJ.

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Bluebook (online)

128 A.D.3d 567, 8 N.Y.S.3d 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-city-of-new-york-nyappdiv-2015.

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