Garcia v La Fortuna Rest., Inc.

Garcia v La Fortuna Rest., Inc. 2013 NY Slip Op 00565 Decided on January 31, 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 January 31, 2013
Tom, J.P., Andrias, Acosta, Manzanet-Daniels, Román, JJ.
9155N 305472/10

[*1]Milagros Garcia, Plaintiff-Respondent,

v

La Fortuna Restaurant, Inc., et al., Defendants-Appellants, John Doe, et al., Defendant.




Rubin, Fiorella & Friedman LLP, New York (Michael C.
O'Malley of counsel), for appellants.
Law Offices of John P. Grill, P.C., Carmel (John P. Grill of
counsel), for respondent.

Order, Supreme Court, Bronx County (Laura Douglas, J.), entered December 20, 2011, which granted plaintiff's motion to strike defendants' answer, unanimously affirmed, without costs.

Plaintiff established that defendant Portoreal's repeated failure to comply with court directives to appear for the completion of his deposition was willful and contumacious and, in opposition, defendants failed to meet their burden of demonstrating a reasonable excuse for Portoreal's non-appearance (see Touray v Munoz, 96 AD3d 623 [1st Dept 2012]; Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]).

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

ENTERED: JANUARY 31, 2013

CLERK