Figueroa v City of New York

Figueroa v City of New York 2015 NY Slip Op 05418 Decided on June 23, 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 June 23, 2015
Mazzarelli, J.P., Sweeny, Acosta, Clark, Kapnick, JJ.
15514 22473/12

[*1] Laurita Figueroa, et al., Plaintiffs-Appellants,

v

City of New York, et al., Defendants-Respondents.

Mitchell Dranow, Sea Cliff, for appellants.

Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 13, 2015, which denied plaintiffs' motion to strike defendants' answer for failing to comply with discovery orders, unanimously affirmed, without costs.

The court providently exercised its discretion in denying the motion to strike and warning defendants that failure to appear at depositions could result in additional sanctions (see Palmenta v Columbia Univ. , 266 AD2d 90, 91 [1st Dept 1999]). While it is true that defendants failed to comply with three discovery orders and to submit to depositions on multiple occasions, the court did not abuse its discretion in choosing not to exercise the "drastic remedy" of striking the answer (McGilvery v New York City Tr. Auth. , 213 AD2d 322, 324 [1st Dept 1995]), and instead providing defendants with one additional opportunity to submit to depositions. Moreover, while the "frail health" of plaintiff Figueroa is unfortunate, since plaintiffs have asserted that he is "ready, willing, and able to submit to a deposition," there does not appear to be any actual prejudice at this time.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2015

CLERK