Rocco v. KCL Protective Services, Inc.

283 A.D.2d 317, 724 N.Y.S.2d 419, 2001 N.Y. App. Div. LEXIS 5393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about October 31, 2000, which granted plaintiffs motion and defendants-respondents’ cross motions to strike the common answer of defendants-appellants Advantage and Montalvo unless the latter was produced for examination by December 1, 2000, unanimously affirmed, without costs.

The testimony of defendant Montalvo, as the security officer in control of the elevator that crushed plaintiffs decedent, was crucial to the proper preparation of this wrongful death action. Montalvo’s failure to appear at any of the depositions that were repeatedly adjourned and re-scheduled for his convenience constituted willful, deliberate and contumacious behavior (Siegman v Rosen, 270 AD2d 14). Under such circumstances, the court has broad discretion (CPLR 3126) to impose an appropriate sanction, which includes the striking of the defendant’s responsive pleading (Toribio v J.D. Posillico, Inc., 268 AD2d 394; Lehman Govt. Sec. v Enhanced Treasury Returns Corp., 216 AD2d 255). The court’s conditional order, striking Montalvo’s answer unless he appeared by a date certain, was a reasonable exercise of that discretion (Besson v Beirne, 188 AD2d 330). The fact that said defendant’s whereabouts are currently unknown is no bar to such a remedy (Reitte v Entermy Cab Corp., 162 AD2d 259).

Montalvo’s employer, defendant Advantage, was guilty of the same pattern of willful and contumacious conduct in failing to produce the witness and concealing information that could have been used to locate him. As a party closely united in interest with Montalvo, Advantage was subject to the same sanction. Concur — Rosenberger, J. P., Ellerin, Wallach, Lerner and Rubin, JJ.