Touray v Munoz

Touray v Munoz 2012 NY Slip Op 05084 Decided on June 21, 2012 Appellate Division, First 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 June 21, 2012
Tom, J.P., Andrias, Friedman, Moskowitz, Renwick, JJ.
8008 308381/09

[*1]Binta Touray, Plaintiff-Respondent,

v

Manuel F. Munoz, et al., Defendants-Appellants.




Morici & Morici, LLP, Garden City (David Smetana of
counsel), for appellants.
Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of
counsel), for respondent.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about April 18, 2011, which granted plaintiff's motion to strike defendants' answer to the extent of striking defendant Jose Gonzalez's answer unless he appeared for deposition within 45 days of the date of the order, unanimously affirmed, without costs.

Plaintiff established that defendant Gonzalez's repeated failure to appear for a deposition, and his failure to comply with successive disclosure orders, were willful and contumacious (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 [2010]). In opposition, defendants failed to meet their burden of demonstrating a reasonable excuse for Gonzalez's non-appearance, offering no excuse for his failure to appear for a deposition from April 20, 2010 to January 19, 2011 (see id.). Defendants also failed to demonstrate good faith efforts to secure Gonzalez's appearance at a deposition. The record does not reveal any concerted attempt by his attorneys to retain an investigator to locate him until after he failed to appear several times (see Mason v MTA N.Y. City Tr., 38 AD3d 258 [2007]; Wong v Ki Il Kim, 17 AD3d 128 [2005]). Moreover, the investigation performed shows that Gonzalez received correspondence from his attorney's office, and simply ignored it.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 21, 2012

DEPUTY CLERK