Walker v. Foreman

104 A.D.3d 460, 963 N.Y.S.2d 625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered May 6, 2011, which granted defendant’s motion to strike plaintiffs pleadings, unanimously affirmed, without costs. Judgment, same court and Justice, entered July 14, 2011, awarding defendant damages in the amount of $116,530, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new inquest on damages.

The court providently exercised its discretion in striking plaintiffs pleadings, given plaintiffs intentional and unexcused failure to comply with more than three orders, some of them stipulated to by plaintiff, to produce documents relevant to the case (CPLR 3126; Oasis Sportswear, Inc. v Rego, 95 AD3d 592 [1st Dept 2012]). However, as an appearing party whose pleadings were stricken, plaintiff was entitled to five days notice of the inquest (CPLR 3215 [g]; Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). The failure to give such notice requires a new inquest, on proper notice. Concur — Sweeny, J.P, Moskowitz, Abdus-Salaam, Román and Feinman, JJ.