Aquino v Taylor

Aquino v Taylor 2020 NY Slip Op 00036 Decided on January 2, 2020 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 2, 2020
Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.
10677N 28282/17E

[*1] Ruben D. Aquino, Plaintiff-Appellant,

v

Alan G. Taylor, Defendant-Respondent.

The Arce Law Office, PLLC, Bronx (Yolanda Castro-Arce of counsel), for appellant.

Gentile & Tambasco, Melville (Katie A. Walsh of counsel), for respondent.

Order, Supreme Court, Bronx County (Maryann Brigantti, J.), entered March 20, 2019, which granted plaintiff's motion to strike defendant's answer to the extent of directing defendant to appear for a deposition by date certain or be precluded from testifying at trial or submitting an affidavit for any purpose, unanimously affirmed, without costs.

Plaintiff failed to demonstrate that defendant's alleged failure to comply with his disclosure obligations was willful, contumacious, or in bad faith (see Perez v New York City Tr. Auth., 73 AD3d 529 [1st Dept 2010]). Although defendant delayed before providing discovery and the responses he owed were exchanged in response to the motion to strike, a conditional order was a proper exercise of discretion since plaintiff has not been prejudiced by the delay (see Curiel v Loews Cineplex Theaters, Inc., 68 AD3d 415 [1st Dept 2009]; Rosen v Corvalon, 309 AD2d 723 [1st Dept 2003]).

Furthermore, the court providently exercised its discretion in directing defendant to appear for deposition by a date certain or be precluded from testifying or submitting an affidavit for any purpose because plaintiff sought compliance with the discovery orders, which all directed that defendant appear for deposition and plaintiff's moving papers do not state that plaintiff no longer wished to depose defendant.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 2, 2020

CLERK