Hogan v City of N.Y.

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Hogan v City of N.Y. 2013 NY Slip Op 30617(U) March 27, 2013 Sup Ct, New York County Docket Number: 106954/201 Judge: Kathryn E. Freed Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART Index Number : 106954/2011 HOGAN, MARSHALL vs. CITY OF NEW YORK SEQUENCE NUMBER : 003 - STRIKEANSWER &g& The following papers, numbered Ito Notice of MotionlOrder to Show Cause Answering Affidavits L r INDEX NO. MOTION DATE MOTION SEQ. NO. & YL -<-- -_. - -. - , were read on this motion tolfor - Affidavits - Exhibits I Ws). - Exhibits IW s ) . INo(s). Replying Affidavits Upon the foregoing papers, it is ordered that this motion is MAR 2 7 2013 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: .............. MOTION IS: ................................................ 0 CASE DISPOSED Ju 0GRANTED [7 DENIED [7 SETTLE ORDER 0DO NOT POST SPOSlTlON GRANTED IN PART OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, DECISION/ORDER Index No.: 106954/201 Seq. No,: 003 -againstTHE CITY OF NEW Y O M , 301-303 WEST 125 LLC. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and EMPIRE CITY SUBWAY COMPANY, HON. KATHRYN E. FREED: PRESENT: Hon. Kathryn E. Freed J.S.C. :13 ! ?I RECITATION, AS REQUIRED BY CPLR 522 19(a), OF THE PAP THIS MOTION. ERED IN T I ~ E REVIEW OF PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED.................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED......... ANSWERING AFFIDAVITS............................................................. REPLYING AFFIDAVITS................................................................. EXHIBITS,.......................................................................................... STIPULATIONS................................................................................. OTHER................................................................................................ ......1-2......... ..................... ..................... ..................... .........3 -4.. ..... ...................... ...................... UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Plaintiff moves for an Order pursuant to CPLRS 3 126 striking defendant 301-303 West 125 LLC's Answer for deliberately failing to take plaintiffs deposition, or in the alternative, pursuant to CPLRS 3 124(2), compelling said defendant to appear for Court Ordered depositions on a date certain. No opposition has been submitted After a review of the instant motion, all relevant statutes and case law, the Court grants the motion pursuant to CPLRS 3126, and strikes defendant 301-303 West 125 LLC's Answer. 1 [* 3] Factual and procedural background: This is a negligence action wherein plaintiff seeks to recover damages for personal injuries allegedly sustained as a result of an accident occurring on February 15,20 11, on a sidewalk located in front of the premises known as 2335,2336 & 2339 Frederick Douglass Boulevard in New York County. The sidewalk was caused to cave in by plaintiff stepping on it, causing him to fall into a hole in the ground measuring 5 feet 5 inches, deep. On March 9,20 1 1, plaintiff filed a Notice of Claim. On June 22,201 1, he filed a Summons and Verified Complaint, and a Supplemental Summons was filed on August 16,2011. On April 3, 20 12, a preliminary conference was held, wherein an Order was rendered by Justice Barbara Jaffe. Said Order is annexed to plaintiffs motion as Exhibit D. Order reads in pertinent part that The the deposition of both plaintiff and defendant 301-303 West 125 LLC was to be held on May 21, 2012 at a location to be agreed upon by the parties. Subsequently, at a compliance conference held on September 18, 2012, another Order rendered by Justice Jaffe indicated in pertinent part that plaintiff s deposition was to be held on December 18,2012. This Order is annexed as Exhibit F. Plaintiff alleges that defense counsel for defendant 301-303 West 125 LLC, has failed to appear for the aforementioned two scheduled depositions, in violation of two Court Orders. He argues that CPLRS 3 126 is an appropriate remedy in response to such flaunting of the discovery process. Conclusions of law: CPLRS 3 126 addresses penalties for the refusal to comply with discovery. It permits the rendering of an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default 2 [* 4] against the disobedient party, as a remedy/penalty. To invoke the drastic remedy of striking an answer, it must be demonstrated that a defendant s failure to comply with discovery was the result of willful, contumacious and deliberate conduct ( see CPLRS 3 126; Cianciolo v. Trism Specialized Carriers, 724 A.D.2d 369,370 [2d Dept. 2OOOJ; Vancott v, Great Atl.& Pac. Tea Co., 271 A.D.2d 438 [2d Dept. 20001; Williams v. Rvder TRS. Inc., 29 A.D.3d 784 [lstDept. 20061. In the case at bar, the Court finds that defendant 301-303 West 125 LLC s failure to appear at two previously Court Ordered depositions was willful and contumacious. Defendant has failed to meet its burden of demonstrating a reasonable excuse for its nonappearance on two occasions. Indeed, it has failed to submit any opposition to the instant motion. In considering defendant s previous and current behavior, affording it another opportunity to appear for a deposition seems pointless ( Touray v. Munoz, 96 A.D.3d 623 [lstDept. 20121; Silverio v. Arvelo, 103 A.D.3d 401 [ 1 Dept. 20131 ). Thus, striking its Answer is an appropriate and necessary remedy. Therefore, plaintiff having established that defendant 301-303 West 125 LLC has willfully failed to appear at two court ordered depositions as directed in the preliminary conference order dated April 3,2012 and the compliance conference order dated September 18,2012, respectively, despite specific directives in said orders, and without good cause, to appear for deposition on the dates directed therein, it is hereby ORDERED that the motion ofplaintiffto strike defendant 301-303 West 125 LLC s Answer is granted, and it is further ORDERED that defendant 301-303 West 125 LLC is precluded from offering proof in opposition to plaintiffs claim of an unsafe condition; and it is further 3 [* 5] ORDERED that plaintiff-movant shall serve a copy of this order on all other parties and the Trial Support Office, 60 Centre Street, Room 158. and it is further ORDERED that counsel shall appear on June 4,2013,in Room 103 at 2:OO p.m., 80 Centre Street, to set a trial date on the remaining issues in the case; and it is further ORDERED that a note of issue and statement of readiness shall be determined at the aforementioned conference; and it is further ORDERED that this constitutes the decision and order of the Court. ENTER: DATED: March n 0 13 , 2 'MAR 2 7 2013 hen. Kathryn E. Freed J.S.C. FILED 4

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