Silverio v. Arvelo

Appellate Division of the Supreme Court of New York

Silverio v. Arvelo

103 A.D.3d 401, 959 N.Y.S.2d 175

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

DecidedFebruary 5, 2013

StatusPublished

Cited by2 cases

This text of 103 A.D.3d 401 (Silverio v. Arvelo) 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

Silverio v. Arvelo, 103 A.D.3d 401, 959 N.Y.S.2d 175 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered April 15, 2011, which, inter alia, granted plaintiffs motion to strike the answer of defendant Ronny M. Arvelo, unanimously affirmed, without costs.

Plaintiff established that Arvelo’s repeated failure to appear for a deposition was willful and contumacious. Since defendants failed to meet their burden of demonstrating a reasonable excuse for the nonappearance, the court did not abuse its discretion in striking the pleading (see Touray v Munoz, 96 AD3d 623 [1st Dept 2012]). Defendants’ investigator had discovered that Arvelo was in school in the Dominican Republic and had no intent to return to New York. “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, 748 [2d Dept 1983]; see Reidel v Ryder TRS, Inc., 13 AD3d 170 [1st Dept 2004]). Concur— Gonzalez, P.J., Mazzarelli, Acosta and Moskowitz, JJ.

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Order, Supreme Court, Bronx County (Laura Douglas, J.), entered April 15, 2011, which, inter alia, granted plaintiffs motion to strike the answer of defendant Ronny M. Arvelo, unanimously affirmed, without costs.

Plaintiff established that Arvelo’s repeated failure to appear for a deposition was willful and contumacious. Since defendants failed to meet their burden of demonstrating a reasonable excuse for the nonappearance, the court did not abuse its discretion in striking the pleading (see Touray v Munoz, 96 AD3d 623 [1st Dept 2012]). Defendants’ investigator had discovered that Arvelo was in school in the Dominican Republic and had no intent to return to New York. “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, 748 [2d Dept 1983]; see Reidel v Ryder TRS, Inc., 13 AD3d 170 [1st Dept 2004]). Concur— Gonzalez, P.J., Mazzarelli, Acosta and Moskowitz, JJ.

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Bluebook (online)

103 A.D.3d 401, 959 N.Y.S.2d 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverio-v-arvelo-nyappdiv-2013.

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