Delgado v City of New York

Delgado v City of New York 2008 NY Slip Op 00573 [47 AD3d 550] January 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

Sandra Delgado, Individually and as Mother and Natural Guardian of Juan Delgado and Others, Infants, Appellant,
v
City of New York et al., Respondents, et al., Defendants.

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Shandell Blitz Blitz & Bookson, LLP, New York City (Richard E. Shandell of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Victoria Scalzo of counsel), for respondents.

Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 24, 2006, which, insofar as appealed from as limited by the briefs, confirmed the recommendation of a judicial hearing officer to deny plaintiff's motion to strike the answers of defendants City of New York, Joseph Richardson and Steven Fischer, unanimously affirmed, without costs.

The drastic remedy of striking defendants' answers was properly denied for lack of a clear showing that defendants' failure to comply with the court's prior discovery orders was willful or contumacious (see CPLR 3126; see also Frye v City of New York, 228 AD2d 182 [1996]; Dauria v City of New York, 127 AD2d 459 [1987]). The record evidence demonstrates that defendant City offered a reasonable excuse for its failure to produce several retired officers for depositions, that defendant Richardson appeared for his deposition, and that the circumstances presented do not warrant the striking of defendant Fischer's answer. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.