Seamon v. Apel

191 A.D.2d 406, 595 N.Y.S.2d 202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Myriam Altman, J.), entered March 13, 1992, which, inter alia, granted plaintiffs’ motion to strike defendant-appellant’s answer, unanimously affirmed, with costs.

The IAS Court did not abuse its discretion in striking appellant’s answer for failure to comply with two prior orders directing him to appear for deposition. "When a discovery order is disobeyed, the court, in its discretion, may strike relevant pleadings” (Besson v Beirne, 188 AD2d 330, 331). "The fact that 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 in appearance for examination before trial” (Foti v Suero, 97 AD2d 748). "The willful and contumacious character of a party’s conduct can be inferred from his repeated failures to appear for examination before trial, coupled with inadequate excuses for these defaults” (Mills v Ducille, 170 AD2d 657, 658). Here, it is clear that appellant was aware that he was required to appear for deposition as evidenced by the doctor’s note he submitted to excuse his absence from the deposition directed in the first order. Counsel’s assertions of good faith efforts to locate appellant do not avail in the absence of details concerning the nature and results of the investigation made into appellant’s whereabouts. Concur — Sullivan, J. P., Carro, Kupferman and Rubin, JJ.