Silverio v Arvelo

Silverio v Arvelo 2013 NY Slip Op 00682 Decided on February 5, 2013 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 February 5, 2013
Gonzalez, P.J., Mazzarelli, Moskowitz, Acosta, JJ.
8838N 306762/09

[*1]Maria Silverio, Plaintiff-Respondent,

v

Ronny M. Arvelo, et al., Defendants-Appellants.




Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn
(Stacy R. Seldin of counsel), for appellants.
Andrew L. Weitz & Associates, P.C., New York (Andrew L.
Weitz of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered April 15, 2011, which, inter alia, granted plaintiff's motion to strike the answer of defendant Ronny M. Arvelo, unanimously affirmed, without costs.

Plaintiff established that Arvelo's repeated failure to appear for a deposition was willful and contumacious. Since defendants failed to meet their burden of demonstrating a reasonable excuse for the nonappearance, the court did not abuse its discretion in striking the pleading (see Touray v Munoz, 96 AD3d 623 [1st Dept 2012]). Defendants' investigator had discovered that Arvelo was in school in the Dominican Republic and had no intent to return to New York. "The fact that defendant has disappeared or made himself unavailable provides no basis for denying a motion to strike his answer, particularly in the face of continued defaults in appearance for examination
before trial" (Foti v Suero, 97 AD2d 748, 748 [2d Dept 1983]; see Reidel v Ryder TRS, Inc., 13 AD3d 170 [1st Dept 2004]).

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

ENTERED: FEBRUARY 5, 2013

CLERK