Carabello v. Luna
| Decision Date | 18 March 2008 |
| Docket Number | 2007-04279. |
| Citation | 853 N.Y.S.2d 663,49 A.D.3d 679,2008 NY Slip Op 02547 |
| Parties | ROGER CARABELLO, Respondent, v. STANLEY LUNA, Respondent, and MADANI MASJID, INC., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal by the defendant Amir Hossain is dismissed, without costs or disbursements, as that defendant is not aggrieved by the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, without costs or disbursements, by deleting the provision thereof granting those branches of the motion which were to strike the answer insofar as interposed by the defendant Madani Masjid, Inc., and, in effect, for leave to enter a default judgment against that defendant and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as reviewed.
A court may, inter alia, issue an order "striking out pleadings or ... rendering a judgment by default" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126 [3]). "To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Maignan v Nahar, 37 AD3d 557 [2007]; see Espinal v City of New York, 264 AD2d 806 [1999]).
Here, in opposition to the plaintiff's motion to strike the answer of the defendant Delawar Hossain (hereinafter Delawar), defense counsel asserted that her office was unable to locate Delawar and therefore, could not produce him for a deposition as ordered by the court. Contrary to counsel's contention, the mere fact that Delawar had disappeared or made himself unavailable did not preclude the court from striking the answer insofar as interposed by him for failure to appear at a court-ordered deposition (see Maignan v Nahar, 37 AD3d 557 [2007]; Robinson v Rollins Leasing Corp., 288 AD2d 367 [2001]; Torres v Martinez, 250 AD2d 759 [1998]). Thus, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendant Delawar for failure to comply with discovery orders. In addition, the court properly granted that branch of the motion which was, in effect, to enter a default judgment against that defendan...
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