Stewart v. City of New York

• Decision Date: 22 November 1999
• Citation: Stewart v. City of New York, 698 N.Y.S.2d 874, 266 AD2d 452 (N.Y. App. Div. 1999)
• Parties: Robert STEWART, etc., et al., appellants, v. CITY OF NEW YORK, et al., defendants, 21st Avenue Transportation Co., Inc., respondent.
• Court: New York Supreme Court — Appellate Division

Page 874

698 N.Y.S.2d 874

Robert STEWART, etc., et al., appellants, v. CITY OF NEW YORK, et al., defendants 21st Avenue Transportation Co., Inc., respondent.

Supreme Court, Appellate Division Second Department, New York.

Nov. 22, 1999.

Huttner, Mingino & Budashewitz, P.C. (Pollack, Pollack, Isaac & DeCicco, New

York, N.Y. [Lee Michael Huttner, Julie T. Mark, and Brian J. Isaac] of counsel), for appellants.

Molod, Spitz, DeSantis & Stark, New York, N.Y. (Alice Spitz and Marcy Sonneborn of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), entered February 11, 1999, as granted the motion of the defendant 21st Avenue Transportation Co., Inc., to vacate so much of a prior order of the same court, dated July 20, 1998, as struck its answer for failing to produce an employee for an examination before trial.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, the motion is denied, and so much of the order dated July 20, 1998, as struck the answer of the defendant 21st Avenue Transportation Co., Inc., is reinstated.

As a result of the failure of the defendant 21st Avenue Transportation Co., Inc. (hereinafter 21st Avenue), to produce a witness for a deposition within 30 days of the entry of a conditional order striking its answer, the conditional order became absolute (see, Clissuras v. Concord Vil. Owners, Inc., 233 A.D.2d 475, 650 N.Y.S.2d 982; Stojowski v. Fair Oaks Dev. Corp., 151 A.D.2d 661, 542 N.Y.S.2d 724). In order to avoid the adverse impact of the order, therefore, 21st Avenue was required to demonstrate an excusable default and the existence of a meritorious claim (see, Felicciardi v. Town of Brookhaven, 205 A.D.2d 495, 613 N.Y.S.2d 188). While a court may, in its discretion, accept law office failure as a reasonable excuse (see, CPLR 2005; Putney v. Pearlman, 203 A.D.2d 333, 612 N.Y.S.2d 919), a pattern of willful default and neglect should not be excused (see, Roussodimou v. Zafiriadis, 238 A.D.2d 568, 569, 657 N.Y.S.2d 66; see also, Wynne v. Wagner, ---A.D.2d ----, 693 N.Y.S.2d 60; Rock v. Schwartz, 244 A.D.2d 542, 664 N.Y.S.2d 614).

Here, after 21st Avenue had failed several times to produce a witness for deposition, the court issued a conditional order striking its answer unless the witness was produced within 30 days of the...