Nunez v. Laidlaw

• Decision Date: 24 May 2017
• Citation: 52 N.Y.S.3d 653 (Mem)
• Parties: Mario NUNEZ, respondent, v. Wesley LAIDLAW, et al., appellants.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1124

52 N.Y.S.3d 653 (Mem)

Mario NUNEZ, respondent,

v.Wesley LAIDLAW, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

May 24, 2017.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum and Jackie Gross ], of counsel), for appellants.

Chopra & Nocerino, LLP, Mineola, NY (Alex Nocerino of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated January 12, 2016, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to strike the answer is denied.

In this action to recover damages for personal injuries arising from a motor vehicle/bicycle collision, the parties entered into a written stipulation dated December 16, 2014, so-ordered by the Supreme Court, which stated that the defendants would provide, within 20 days, inter alia, "the insurance" of Maria Laidlaw, the mother of the defendant Wesley Laidlaw (hereinafter Wesley), the full name and last known addresses of witnesses Earl Settles and Trevor, authorizations for the property damage file, and photographs taken by Wesley of his vehicle. On January 21, 2015, the defendants served a response to the discovery demanded, stating that they did not have access to the insurance policy of Wesley's mother, are not aware of the addresses of Earl Settles and Trevor, and are not in possession of any property damage file or photographs. By motion dated January 22, 2015, the plaintiff moved to strike the answer, to compel the defendants to produce discovery, or to preclude the defendants from offering any evidence or testimony at the time of trial. In an order entered July 14, 2015, the court granted that branch of the plaintiff's motion which was to preclude the defendants from offering any testimony at trial of the witnesses Earl Settles and Trevor unless their last known addresses were provided within 60 days before trial, and directed the defendants to produce the insurance policy of Wesley's mother and certain photographs allegedly taken by Wesley. When the defendants failed to comply, the plaintiff moved to strike the answer or preclude the defendants from offering evidence or testimony at the time of trial. The defendants' papers in opposition included Wesley's affidavit, which stated that the items were not in his possession. In the order appealed from dated January 12, 2016, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was to strike the answer. The defendants appeal.

Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737, 739, 945 N.Y.S.2d 756 ;

A.F.C. Enters., Inc. v. New York City School Constr. Auth., 33 A.D.3d 737, 822 N.Y.S.2d 775 ; Euro–Central Corp. v. Dalsimer, Inc., 22 A.D.3d 793, 794, 803 N.Y.S.2d 171 ). Although a party may not be compelled to produce or sanctioned for failing to produce information that is not in his or her possession or control (see CPLR 3120[1][i] ; Sagiv v. Gamache, 26 A.D.3d 368, 810 N.Y.S.2d 481 ; Gatz v. Layburn, 9 A.D.3d 348, 350, 780 N.Y.S.2d 157 ; Corriel v. Volkswagen of Am., 127 A.D.2d 729, 731, 512 N.Y.S.2d...