Henry Rosenfeld, Inc. v. Bower and Gardner
| Decision Date | 15 May 1990 |
| Citation | 555 N.Y.S.2d 320,161 A.D.2d 374 |
| Parties | HENRY ROSENFELD, INC., etc., Plaintiff-Respondent, v. BOWER AND GARDNER et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
B. Zalman, New York City, for plaintiff-respondent.
P.J. Maloney, for defendants-appellants.
Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and SMITH, JJ.
Order of the Supreme Court, New York County (David B. Saxe, J.), entered on or about July 18, 1989 striking defendants' answer and directing that the matter be set down for an assessment of damages is unanimously affirmed, with costs.
In this action for attorneys' malpractice, defendants' answer was stricken for failure to submit to court ordered deposition. Under CPLR 3126, if a party refuses to obey an order for disclosure, the court may order that party's pleading stricken (Rodriguez v. Sklar, 56 A.D.2d 537, 538, 391 N.Y.S.2d 423). The striking of an answer is an extreme and drastic penalty, and should not be invoked where the moving affidavit fails to show conclusively that the default was clearly deliberate or contumacious (Cinelli v. Radcliffe, 35 A.D.2d 829, 317 N.Y.S.2d 97). Such a sanction is proper where the conduct of a party warrants it (Sony Corporation of America v. Savemart, Inc., 59 A.D.2d 676, 676-677, 398 N.Y.S.2d 539).
The record before us discloses that defendants engaged in a course of conduct which was dilatory, evasive, obstructive and ultimately contumacious. For over one year after their cross-notice of deposition, defendants successfully avoided submitting to discovery while obtaining the deposition of plaintiff. Plaintiff was compelled to seek an order of the court striking defendants' answer which, upon defendants' default, was granted unless defendants submitted to deposition on a date certain. A copy of this order was served on defendants' attorneys who were thereafter given a courtesy telephone call several days before the court-ordered deposition. Later that same day, counsel for defendants telephoned plaintiff's attorney to advise that the witness would be unavailable on the ordered date. On the day before the ordered examination, defendants' attorney served plaintiffs counsel with an omnibus motion seeking a protective order pursuant to CPLR 3103(b); an extension of time in which to comply with the courts conditional dismissal order (CPLR 2004) and; relief from the conditional dismissal order based, apparently on excusable...
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...that can fairly be described as “dilatory, evasive, obstructive and ultimately contumacious” ( Henry Rosenfeld, Inc. v. Bower & Gardner, 161 A.D.2d 374, 374, 555 N.Y.S.2d 320 [1990] ), designed to frustrate the motion court's discovery orders and directives (CPLR 3124). The striking of plea......
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...fails to disclose information." Sony Corp. of Am. v. Savemart, Inc., 59 A.D.2d 676, 677 (1st Dep't 1977); Henry Rosenfeld, Inc. v. Bower & Gardner, 161 A.D.2d 374 (1st Dep't 1990). However, "in furtherance of the policy favoring resolution of actions on the merits, the drastic remedy of str......
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Dehaney v. New York City Transit Authority
...and drastic penalty" warranted only where the conduct is "clearly deliberate or contumacious". Henry Rosenfeld, Inc. v. Bower and Gardner, 161 A.D.2d 374, 555 N.Y.S.2d 320 (1st Dept.1990). Even where there was an inexcusable and repeated failure to appear for a court ordered deposition, str......
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...noncompliance ( see Bryant v. New York City Hous. Auth., 69 A.D.3d 488, 893 N.Y.S.2d 47 [2010];Henry Rosenfeld, Inc. v. Bower & Gardner, 161 A.D.2d 374, 375, 555 N.Y.S.2d 320 [1990] ), and the extensive delays in prosecuting the eleven-year-old case have prejudicedthe ability of defendants ......