Brodsky v Amber Ct. Assisted Living, LLC

Brodsky v Amber Ct. Assisted Living, LLC 2017 NY Slip Op 00955 Decided on February 8, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 8, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
BETSY BARROS, JJ.
2015-06887
(Index No. 1377/11)

[*1]Louis Brodsky, etc., respondent,

v

Amber Court Assisted Living, LLC, et al., appellants.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas Hurzeler and David Datny of counsel), for appellants.

Edelman, Krasin & Jaye, PLLC, Westbury, NY (Thomas S. Russo of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries and wrongful death, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered May 22, 2015, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendant Keisha Adams to the extent of conditionally striking her answer unless she appeared for a deposition on a date certain.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof conditionally striking the answer of the defendant Keisha Adams unless she appeared for a deposition on a date certain, and substituting therefor a provision precluding the defendant Keisha Adams from offering any testimony at trial unless she appears for a deposition at a time and place mutually agreed to by the parties, but in no event less than 30 days before trial; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In the absence of evidence that the defendant Keisha Adams willfully and contumaciously failed to appear for an examination before trial, the Supreme Court improvidently exercised its discretion in conditionally striking her answer (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739; Patel v DeLeon, 43 AD3d 432, 432-433). Under the circumstances, the appropriate remedy was to preclude Adams from offering any testimony at trial unless she appeared for a deposition at least 30 days before the trial (see Patel v DeLeon, 43 AD3d at 432-433; Williams v Ryder TRS, Inc., 29 AD3d 784, 785; Viteritti v Gelfand, 289 AD2d 566, 567; Solomon v Horie Karate Dojo, 283 AD2d 480, 481; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370; cf. Facey v Silver Express Cab Corp., 87 AD3d 1053, 1053-1054).

The defendants' remaining contention is without merit.

CHAMBERS, J.P., ROMAN, MILLER and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court