Rivera v City of New York

Rivera v City of New York 2015 NY Slip Op 04392 Decided on May 21, 2015 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 May 21, 2015
Tom, J.P., Friedman, DeGrasse, Richter, Kapnick, JJ.
15187 100299/10

[*1] Lillian Rivera, Plaintiff-Appellant,

v

City of New York, Defendant-Respondent, New York City Housing Authority, Defendant.

Coiro, Wardi, Chinitz & Silverstein, Bronx (Michael A. Chinitz of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered April 3, 2014, which, to the extent appealed from as limited by the briefs, granted defendant City of New York's motion to strike the complaint, unanimously affirmed, without costs.

Plaintiff's noncompliance with six court orders issued in a two-year period directing her to appear for a deposition culminated in an order directing her to appear for a deposition and stating that failure to appear would result in the striking of the complaint (see CPLR 3126). Plaintiff claims that it was actually defendant's counsel who was not prepared to proceed on the final date scheduled for her deposition, but offered no documentation to support this claim other than plaintiff's counsel's secretary's affidavit, which was not sufficient under the circumstances here, including the history of her failing to appear for at least seven previously scheduled depositions. Thus, she failed to demonstrate a reasonable excuse for her failure to appear so as to relieve herself of the sanction imposed by the conditional order (see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]; 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: MAY 21, 2015

CLERK