Xina v. City of New York

13 A.D.3d 440, 785 N.Y.S.2d 709, 2004 N.Y. App. Div. LEXIS 15201

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals from an order of the Supreme Court, Queens County (Schulman, J.), entered December 11, 2003, which granted the plaintiff’s motion to strike its answer.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in striking the answer of the New York City Transit Authority (hereinafter Transit Authority) for failure to produce a Transit Authority employee for a deposition, despite two so-ordered stipulations directing that the deposition be conducted. The willful and contumacious character of the Transit Authority’s failure to produce the witness for a deposition can be inferred from its repeated failure to comply with so-ordered stipulations requiring the appearance of the witness, and the lack of an adequate excuse for not producing the witness (see Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339, 340 [2004], lv denied 3 NY3d 602 [2004]). Smith, J.P., Luciano, Crane and Rivera, JJ., concur.