Preview
FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------x
Index No.: 35218/2020
PAOLA VARGAS MENDEZ,
Plaintiff(s),
AFFIRMATION
- against -
PEDRO A. MENDEZ and RAYMOND J. BROWN ,
Defendant(s).
---------------------------------------------- ___________-____Ç
MARCELO A. BUITRAGO, an attorney duly admitted to practice law in the State of
New York, hereby affirms the following to be true under the penalty of perjury:
1. I am member of the law firm of BUITRAGO & ASSOCIATES PLLC, attorneys for
the Plaintiffs herein, and as such I am fully familiar with the facts and circumstances in this matter.
2. This affirmation is submitted in support of the within motion for an Order pursuant
defendants'
to CPLR §3126 striking answer for failing to proceed with court-ordered depositions.
3. This is an action to recover monetary damage for personal injuries suffered by the
plaintiff Paola Vargas Mendez, as the result of a motor vehicle accident which took place on June
11, 2020.
4. Suit was commenced by service of a summons and complaint; issue was joined; and
plaintiffs served their verified billof particulars (Annexed hereto collectively as Exhibit "A").
5. Subsequently, a preliminary conference was held which resulted in an Order
(Exhibit "B"). Pursuant to that Order all depositions were to be completed by September 22, 2021.
6. To date, none of the depositions have taken place. Depositions were scheduled for
September 21, 2021 and November 2, 2021; . Defendants have not complied with the deposition
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pursuant to the Orders. Therefore plaintiff request that defendants answers be stricken.
7. The sanctions for non disclosure are provided by CPLR Section 3126, as follows:
If any party,...refuses to obey an Order for disclosure or willfully fails to
disclose information which the court finds ought to have been disclosed, the
Court may make such orders with regard to the failure or refusal as are just,
among them:
3. an order striking out pleadings,...
8. The New York State Court of Appeals has stated that where a party disobeys a court
order and by his conduct frustrates the disclosure scheme provided by the C.P.L.R., itis within the
discretion of the trial court to strike the pleading of the defaulting party. See Zletz v Wetanson,
67 N.Y.2d 711, 490 N.E.2d 852, 499 N.Y.S.2d 933, (1986).
9. The Appellate Division, First and Second Department have followed the decisions
in Zletz and Kihl v Pfeffer and Honda Motor Co. Inc., 94 N.Y.2d 118, 722 N.E.2d 55, 700
N.Y.S.2d 87 (1999). In Kihl, the defendant moved to strike the plaintiff's complaint for failing to
respond to interrogatories within court-ordered time frames. Although the plaintiff finally
responded five months after the date fixed by the Court, the defendant persisted in seeking
dismissal of the complaint as plaintiff's responses were "woefully inadequate and totally
order."
unresponsive in clear violation of the Court's Id. at 121. The lower court granted the order,
and the Court of Appeals affirmed the order, stating that "when a party fails to comply with a court
order and frustrates the disclosure scheme set forth in the C.P.L.R., it is well within the Trial
complaint."
Judge's discretion to dismiss the Id.at 122. The Court further stated that "If the
credibility of court orders and the integrity of our judicial system are to be maintained, a litigant
cannot ignore court orders with impunity. kl. Finally, the Court stated that "compliance with a
disclosure order requires both a timely response and one that evinces a good-faith effort to address
meaningfully."
the requests Id.
contumacious"
10. The courts have consistently held that willful and behavior, which
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warrants the sanctions of C.P.L.R. 3126, can be inferred from "his repeated failures to appear for
defaults."
an examination before trial, coupled with inadequate excuses for the (Seamon v Apel,
(1st
191 AD2d 406, 595 NYS2d 202 Dept., 1993); Porreco v. Selway, 225 A.D.2d 752, 640
(2nd
N.Y.S.2d 171 Dept 1996); DeGennaro v Robinson Textiles, 224 A.D.2d 574, 638 N.Y.S.2d
(2nd (2nd
692 Dept., 1996); Forestire v. Inter-stop, Inc., 211 A.D.2d 751, 621 N.Y.S.2d 686 Dept.
(2nd
1995); Schneider v City of New York, 217 A.D.2d 610, 629 N.Y.S.2d 473 Dept. 1995); Town
(2nd
of Southampton v Salten, 186 A.D.2d 796, 589 N.Y.S.2d 355 Dept. 1992); and Oberlander v
(2nd
Levi, 207 A.D.2d 437, 615 N.Y.S.2d 903 Dept., 1994). Further, defendant's disobedience with
court orders directing appearance at a deposition constitutes precisely the sort of dilatory and
answer."
obstructive, and thus contumacious conduct warranting the striking of their (Kutner v
(1st
Feiden, 223 AD2d 488, 637 NYS2d 15 Dept., 1996). In the absence of an adequate excuse for
the failure, "a court may reasonably infer that a party's repeated failure to appear for court ordered
behavior."
depositions . . . constituteswillful and contumacious (Johnson v City of New York, 188
(1st
AD2d 302, 590 NYS2d 485 Dept., 1992). Further, "unconditionally striking a pleading
pursuant to CPLR 3126 is appropriate where the resisting party's default is deliberate and
contumacious. Disobedience of a court order and frustration of the disclosure scheme provided for
sanction."
by the CPLR warrant imposition of the (Pimental v City of New York, 246 AD2d 467,
(1st
668 NYS2d 187 Dept., 1998).
11. A court may strike pleadings as a sanction against a party who refuses to obey an
order of disclosure or willfully failsto disclose information which the court finds out to have been
'
disclosed, while the nature and degree of the penalty to be imposed pursuant to C.P.L.R. 3126 is
(1St
a matter of discretion, Spira v Antoine, 191 A.D.2d 219, 596 N.Y.S.2d Dept., 1993); Soto v
(2nd
City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691 Dept., 1993). "The drastic remedy
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of striking an answer is appropriate where there is a clear showing that the failure to comply with
discovery demands is willful, contumacious or in bad faith", Harris v City of New York, 211
(2nd
A.D.2d 663, 622 N.Y.S.2d 289 Dept. 1995); Lestingi v City of New York, 209 A.D.2d 384,
(2nd
618 N.Y.S.2d 731 Dept., 1994). While the lower courts have traditionally applied a more lax
standard of sanctions against the defendants for failure to disclose, i.e., greater time limits to
produce documents and witnesses and issuance of repeated order to produce, the Court of Appeals
has not been as tolerant.
(2nd
12. The case of Herrera v City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647
Dept., 1997) is an example of the Court's intolerance. In Herrera, the lower court decided not to
strike the City's answer, despite year long non-compliance with discovery demands, the
preliminary conference order and stipulations. On appeal, the Second Department reversed the
order, and issued an Order striking the defendant's answer. The court stated that "the defendant's
willful and contumacious conduct can be inferred from its repeated failure to comply with court
orders directing disclosure,@, and that AAt no time did the defendant offer a reasonable excuse
for itsrepeated failures to comply with plaintiff's outstanding discovery demands and court orders
disclosure."
directing Id at 476.
13. In Seamon v Apel & Abbas, supra, the defendant failed to comply with two prior
orders directing him to produce a witness. The lower court struck defendant's motion, and the
Court of Appeals affirmed the order. The Court held that "The IAS Court did not abuse its
discretion in striking appellant's answer for failure to comply with two prior orders directing him
to appear for a deposition. When a discovery order is disobeyed, the court, in its discretion, may
pleading."
strike a relevant Id. The Court further noted that "The willful and contumacious
character of a party's conduct can be inferred from his repeated failures to appear for examinations
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defaults."
before trial, coupled with inadequate excuses for these (Citing Mills v Ducille, 170 Ad2d
657.) Id.
(2nd
14. In Montgomery v City ofNew York, 296 A.D.2d 386, 745 N.Y.S.2d 464
2002), the plaintiff moved to strike the answer of the defendant for their refusal to produce a
witness for examination before trial. The lower court partially granted the motion, only to the
extent that the answer would be stricken unless the defendants produced a witness by a certain
date. The Second Department reversed the lower court, granting plaintiff's motion in it's entirety,
and struck the answer of the defendant. The court quoted both Herrera and Espinal, and also stated
that "a court may strike the pleadings as a sanction against a party who refuses to obey an order
for disclosure or willfully fails to disclose information which the court finds ought to have been
disclosed."
Id. at 386.
(1st
15. In Ortiz v Weaver, 188 Ad2d 290, 590 NYS2d 474 Dept., 1992), the lower
court struck defendant's answer, and the First Department affirmed the order. The Court held that
"Defendant's successive failures to respond, in whole or in part, to plaintiff's discovery requests .
. .. constituted the type of dilatory and obstructive conduct which justified striking their answers
"
(citing Zletz v Wetanson, supra). Id at 290.
(1St
16. In Varvitsiotes v. Pierre, 260 AD2d 297, 689 NYS2d 52 Dept., 1999), the lower
court granted plaintiff's motion to strike the answer of the defendant for failing to appear for
depositions. The First Department affirmed the order, stating that defendant's "repeated and
unexplained failures to attend court ordered depositions warranted the striking of his answer
' 15)."
pursuant to C.P.L.R. 3126 (see, Kutner v Feiden, 223 AD2d 488, 637 NYS2d
17. In Patterson v Greater New York Corporation of Seventh Day Adventists, et al.,
(2nd
284 A.D.2d 382, 726 N.Y.S.2d 278 Dept., 2001), the Appellate Division affirmed the order
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of the lower court in striking the answer of the defendant for failing to produce a witness with
knowledge for an examination before trial. The Court held that such an order was appropriate
"based on their repeated and inadequately explained failure to produce an essential witness for an
trial."
examination before Id. at 383.
18. In Kutner v Feiden, supra, the lower court granted plaintiff's motion to strike the
answer of the defendant. The Court of Appeals affirmed the order, holding that "Defendant's
disobedience of a series of court orders directing . .. the appearance of the individual defendant
for deposition constituted precisely the sort of dilatory and obstructive, and thus contumacious,
(c.o.)"
conduct warranting the striking of their answers IdL at 489.
(13t
19. In Levy v Salkind, 276 AD2d 283, 713 NYS2d 863 Dept. 2000), the Court of
Appeals stated that "Defendant's failure to appear for deposition, as directed by the IAS court, in
the New York offices of plaintiff's counsel, was not excused by the fact that he faced arrest on a
bench warrant issued by the same court for his failure to appear at a different deposition, and the
court, accordingly, properly struck defendant's answer pursuant to CPLR 3126 by reason of his
(c.o.)."
contumacious and willful conduct IdL
(1st
20. In Rosenfeld v Bower & Gardner, 161 AD2d 320, 555 NYS2d 320 Dept. 1990),
the lower court granted plaintiff's motion striking the defendant's answer, and the Court of
Appeals affirmed the order. The Court noted that the striking of a pleading is a proper penalty for
the failure to disclose discovery, and that for one year after their cross notice of deposition the
defendant's never produced a witness for depositions. The Court held that "Where a party in these
circumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided
by the CPLR, dismissal of the pleading is within the broad discretion of the trial court (citing Zletz,
supra).".Içl at 321.
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21. In Johnson v City of New York, supra, the lower court struck the answer of the
defendant for failure to produce a witness for a deposition. The Court of Appeals affirmed the
order, holding that "In the absence of an adequate excuse therefore, a court may reasonably infer
that a party's repeated failure to appear for court ordered depositions or to comply with disclosure
(c.o.)."
requests constitutes willful and contumacious conduct Id. at 303.
(1st
22. In Langer v Miller, 281 AD2d 338, 722 NYS2d Dept. 2001), the lower court
granted plaintiff's motion to strike defendant's answer, and the Court of Appeals affirmed the
order, finding that the defendant's had not complied with the preliminary conference and
compliance conference orders. "Defendant's failure to comply with a preliminary conference
contumacious."
order and two compliance orders . . . was willful and Ed_at 338. "Under the
circumstances, the extreme sanction of striking defendant's answer, and precluding them from
warranted."
putting in any affirmative proof is M.
(1st
23. In Helms v Gangemi, 265 AD2d 203, 696 NYS2d 441 Dept. 1999), the
defendant failed to comply with plaintiff's discovery demands. The Lower Court struck itsanswer,
and the Court of Appeals affirmed the order. The Court held that "Defendant's persistent failure
to produce the documents demanded by plaintiff and directed by the court was dilatory conduct
pleadings."
that warranted the extreme sanction of striking his M at 204.
24. In Pimental v City of New York, supra, the defendant's answer was stricken for
failure to produce a witness with knowledge for a deposition. The lower court granted plaintiff's
motion, and the Court of Appeals affirmed the order. "Unconditionally striking a pleading
pursuant to CPLR 3126 is appropriate where the resisting party's default is deliberate and
contumacious. Disobedience of a court order and frustration of the disclosure scheme provided
sanction."
for by the CPLR warrant imposition of the M at 468.
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(1st
25. In Ritter Foundation, Inc. v Tebele, 222 AD2d 355, 635 NYS2d 628 Dept.
1995), the lower court denied plaintiff's motion to strike the defendant's answer for failing to
respond to interrogatories for more than seven months. The Court of Appeals reversed the order,
holding that "While the striking of a pleading pursuant to CPLR 3126 for failure to comply with
an order of disclosure is an extreme and drastic remedy, here it is warranted by defendant's
months."
defiance of the demand for interrogatories for more than seven M_at 629
26. In Pan World Construction Corp., v 791 Park Avenue Corp., 185 Ad2d 105, 585
(1St
NYS2d 731 Dept. 1992), the defendant failed to appear at depositions, never produced a
witness, and offered no reason for the absences. The Court of Appeals struck their answer, holding
that "the defendant's default in disclosure was clearly deliberate, warranting the sanction of
(c.o.)."
striking its answer and counterclaims Further, the court noted that in defending against
such a motion, the defendant had to "submit an affidavit of merit from a person competent to attest
defense."
to the meritorious nature of the M at 107.
(1st
27. See also, Sandcham v Sonnenschine, 246 AD2d 477, 667 NYS2d 257 Dept.
1998), (Court of Appeals affirming lower court's order striking defendant's answer for its
noncompliance with court ordered discovery); Stark v Reliance National Indemnity Co., 273
(1st
AD2d 148, 710 NYS2d 893 Dept. 2000) (dismissal of the plaintiff's complaint proper for its
willful noncompliance with their discovery obligations);
28. As can be seen from the above cases, both the New York State Court of Appeals
and the Appellate Division, First and Second Department, no longer tolerate a situation where a
defendant has failed to respond adequately to discovery demands in a timely fashion, and hence
frustrates the discovery scheduled issued by the court. Here defendant's failure to conduct
depositions in accordance with court order clearly fits into the above described situations. When
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this situation occurs, the proper remedy according to both Courts is to strike the answer of the
defaulting defendants.
29. For all of the foregoing reasons, it isrespectfully requested that in addition to the
attorneys'
specific relief sought herein, that costs, fees and sanctions be awarded to plaintiff s
attorneys, to be paid by defendant due to their cavalier disregard exhibited herein, including the
necessity of the within application.
WHEREFORE, Plaintiff respectfully requests the within motion be granted in all
respects and that this Court grant such other and further relief as to this Court seems just and
proper.
Dated: New York, New York
January 9. 2023
ARCELO A BUITRAGO
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Preview
FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------x Index No.: 35218/2020 PAOLA VARGAS MENDEZ, Plaintiff(s), AFFIRMATION - against - PEDRO A. MENDEZ and RAYMOND J. BROWN , Defendant(s). ---------------------------------------------- ___________-____Ç MARCELO A. BUITRAGO, an attorney duly admitted to practice law in the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am member of the law firm of BUITRAGO & ASSOCIATES PLLC, attorneys for the Plaintiffs herein, and as such I am fully familiar with the facts and circumstances in this matter. 2. This affirmation is submitted in support of the within motion for an Order pursuant defendants' to CPLR §3126 striking answer for failing to proceed with court-ordered depositions. 3. This is an action to recover monetary damage for personal injuries suffered by the plaintiff Paola Vargas Mendez, as the result of a motor vehicle accident which took place on June 11, 2020. 4. Suit was commenced by service of a summons and complaint; issue was joined; and plaintiffs served their verified billof particulars (Annexed hereto collectively as Exhibit "A"). 5. Subsequently, a preliminary conference was held which resulted in an Order (Exhibit "B"). Pursuant to that Order all depositions were to be completed by September 22, 2021. 6. To date, none of the depositions have taken place. Depositions were scheduled for September 21, 2021 and November 2, 2021; . Defendants have not complied with the deposition 1 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 pursuant to the Orders. Therefore plaintiff request that defendants answers be stricken. 7. The sanctions for non disclosure are provided by CPLR Section 3126, as follows: If any party,...refuses to obey an Order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, the Court may make such orders with regard to the failure or refusal as are just, among them: 3. an order striking out pleadings,... 8. The New York State Court of Appeals has stated that where a party disobeys a court order and by his conduct frustrates the disclosure scheme provided by the C.P.L.R., itis within the discretion of the trial court to strike the pleading of the defaulting party. See Zletz v Wetanson, 67 N.Y.2d 711, 490 N.E.2d 852, 499 N.Y.S.2d 933, (1986). 9. The Appellate Division, First and Second Department have followed the decisions in Zletz and Kihl v Pfeffer and Honda Motor Co. Inc., 94 N.Y.2d 118, 722 N.E.2d 55, 700 N.Y.S.2d 87 (1999). In Kihl, the defendant moved to strike the plaintiff's complaint for failing to respond to interrogatories within court-ordered time frames. Although the plaintiff finally responded five months after the date fixed by the Court, the defendant persisted in seeking dismissal of the complaint as plaintiff's responses were "woefully inadequate and totally order." unresponsive in clear violation of the Court's Id. at 121. The lower court granted the order, and the Court of Appeals affirmed the order, stating that "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the C.P.L.R., it is well within the Trial complaint." Judge's discretion to dismiss the Id.at 122. The Court further stated that "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. kl. Finally, the Court stated that "compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address meaningfully." the requests Id. contumacious" 10. The courts have consistently held that willful and behavior, which 2 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 warrants the sanctions of C.P.L.R. 3126, can be inferred from "his repeated failures to appear for defaults." an examination before trial, coupled with inadequate excuses for the (Seamon v Apel, (1st 191 AD2d 406, 595 NYS2d 202 Dept., 1993); Porreco v. Selway, 225 A.D.2d 752, 640 (2nd N.Y.S.2d 171 Dept 1996); DeGennaro v Robinson Textiles, 224 A.D.2d 574, 638 N.Y.S.2d (2nd (2nd 692 Dept., 1996); Forestire v. Inter-stop, Inc., 211 A.D.2d 751, 621 N.Y.S.2d 686 Dept. (2nd 1995); Schneider v City of New York, 217 A.D.2d 610, 629 N.Y.S.2d 473 Dept. 1995); Town (2nd of Southampton v Salten, 186 A.D.2d 796, 589 N.Y.S.2d 355 Dept. 1992); and Oberlander v (2nd Levi, 207 A.D.2d 437, 615 N.Y.S.2d 903 Dept., 1994). Further, defendant's disobedience with court orders directing appearance at a deposition constitutes precisely the sort of dilatory and answer." obstructive, and thus contumacious conduct warranting the striking of their (Kutner v (1st Feiden, 223 AD2d 488, 637 NYS2d 15 Dept., 1996). In the absence of an adequate excuse for the failure, "a court may reasonably infer that a party's repeated failure to appear for court ordered behavior." depositions . . . constituteswillful and contumacious (Johnson v City of New York, 188 (1st AD2d 302, 590 NYS2d 485 Dept., 1992). Further, "unconditionally striking a pleading pursuant to CPLR 3126 is appropriate where the resisting party's default is deliberate and contumacious. Disobedience of a court order and frustration of the disclosure scheme provided for sanction." by the CPLR warrant imposition of the (Pimental v City of New York, 246 AD2d 467, (1st 668 NYS2d 187 Dept., 1998). 11. A court may strike pleadings as a sanction against a party who refuses to obey an order of disclosure or willfully failsto disclose information which the court finds out to have been ' disclosed, while the nature and degree of the penalty to be imposed pursuant to C.P.L.R. 3126 is (1St a matter of discretion, Spira v Antoine, 191 A.D.2d 219, 596 N.Y.S.2d Dept., 1993); Soto v (2nd City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691 Dept., 1993). "The drastic remedy 3 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 of striking an answer is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious or in bad faith", Harris v City of New York, 211 (2nd A.D.2d 663, 622 N.Y.S.2d 289 Dept. 1995); Lestingi v City of New York, 209 A.D.2d 384, (2nd 618 N.Y.S.2d 731 Dept., 1994). While the lower courts have traditionally applied a more lax standard of sanctions against the defendants for failure to disclose, i.e., greater time limits to produce documents and witnesses and issuance of repeated order to produce, the Court of Appeals has not been as tolerant. (2nd 12. The case of Herrera v City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647 Dept., 1997) is an example of the Court's intolerance. In Herrera, the lower court decided not to strike the City's answer, despite year long non-compliance with discovery demands, the preliminary conference order and stipulations. On appeal, the Second Department reversed the order, and issued an Order striking the defendant's answer. The court stated that "the defendant's willful and contumacious conduct can be inferred from its repeated failure to comply with court orders directing disclosure,@, and that AAt no time did the defendant offer a reasonable excuse for itsrepeated failures to comply with plaintiff's outstanding discovery demands and court orders disclosure." directing Id at 476. 13. In Seamon v Apel & Abbas, supra, the defendant failed to comply with two prior orders directing him to produce a witness. The lower court struck defendant's motion, and the Court of Appeals affirmed the order. The Court held that "The IAS Court did not abuse its discretion in striking appellant's answer for failure to comply with two prior orders directing him to appear for a deposition. When a discovery order is disobeyed, the court, in its discretion, may pleading." strike a relevant Id. The Court further noted that "The willful and contumacious character of a party's conduct can be inferred from his repeated failures to appear for examinations 4 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 defaults." before trial, coupled with inadequate excuses for these (Citing Mills v Ducille, 170 Ad2d 657.) Id. (2nd 14. In Montgomery v City ofNew York, 296 A.D.2d 386, 745 N.Y.S.2d 464 2002), the plaintiff moved to strike the answer of the defendant for their refusal to produce a witness for examination before trial. The lower court partially granted the motion, only to the extent that the answer would be stricken unless the defendants produced a witness by a certain date. The Second Department reversed the lower court, granting plaintiff's motion in it's entirety, and struck the answer of the defendant. The court quoted both Herrera and Espinal, and also stated that "a court may strike the pleadings as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed." Id. at 386. (1st 15. In Ortiz v Weaver, 188 Ad2d 290, 590 NYS2d 474 Dept., 1992), the lower court struck defendant's answer, and the First Department affirmed the order. The Court held that "Defendant's successive failures to respond, in whole or in part, to plaintiff's discovery requests . . .. constituted the type of dilatory and obstructive conduct which justified striking their answers " (citing Zletz v Wetanson, supra). Id at 290. (1St 16. In Varvitsiotes v. Pierre, 260 AD2d 297, 689 NYS2d 52 Dept., 1999), the lower court granted plaintiff's motion to strike the answer of the defendant for failing to appear for depositions. The First Department affirmed the order, stating that defendant's "repeated and unexplained failures to attend court ordered depositions warranted the striking of his answer ' 15)." pursuant to C.P.L.R. 3126 (see, Kutner v Feiden, 223 AD2d 488, 637 NYS2d 17. In Patterson v Greater New York Corporation of Seventh Day Adventists, et al., (2nd 284 A.D.2d 382, 726 N.Y.S.2d 278 Dept., 2001), the Appellate Division affirmed the order 5 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 of the lower court in striking the answer of the defendant for failing to produce a witness with knowledge for an examination before trial. The Court held that such an order was appropriate "based on their repeated and inadequately explained failure to produce an essential witness for an trial." examination before Id. at 383. 18. In Kutner v Feiden, supra, the lower court granted plaintiff's motion to strike the answer of the defendant. The Court of Appeals affirmed the order, holding that "Defendant's disobedience of a series of court orders directing . .. the appearance of the individual defendant for deposition constituted precisely the sort of dilatory and obstructive, and thus contumacious, (c.o.)" conduct warranting the striking of their answers IdL at 489. (13t 19. In Levy v Salkind, 276 AD2d 283, 713 NYS2d 863 Dept. 2000), the Court of Appeals stated that "Defendant's failure to appear for deposition, as directed by the IAS court, in the New York offices of plaintiff's counsel, was not excused by the fact that he faced arrest on a bench warrant issued by the same court for his failure to appear at a different deposition, and the court, accordingly, properly struck defendant's answer pursuant to CPLR 3126 by reason of his (c.o.)." contumacious and willful conduct IdL (1st 20. In Rosenfeld v Bower & Gardner, 161 AD2d 320, 555 NYS2d 320 Dept. 1990), the lower court granted plaintiff's motion striking the defendant's answer, and the Court of Appeals affirmed the order. The Court noted that the striking of a pleading is a proper penalty for the failure to disclose discovery, and that for one year after their cross notice of deposition the defendant's never produced a witness for depositions. The Court held that "Where a party in these circumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the pleading is within the broad discretion of the trial court (citing Zletz, supra).".Içl at 321. 6 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 21. In Johnson v City of New York, supra, the lower court struck the answer of the defendant for failure to produce a witness for a deposition. The Court of Appeals affirmed the order, holding that "In the absence of an adequate excuse therefore, a court may reasonably infer that a party's repeated failure to appear for court ordered depositions or to comply with disclosure (c.o.)." requests constitutes willful and contumacious conduct Id. at 303. (1st 22. In Langer v Miller, 281 AD2d 338, 722 NYS2d Dept. 2001), the lower court granted plaintiff's motion to strike defendant's answer, and the Court of Appeals affirmed the order, finding that the defendant's had not complied with the preliminary conference and compliance conference orders. "Defendant's failure to comply with a preliminary conference contumacious." order and two compliance orders . . . was willful and Ed_at 338. "Under the circumstances, the extreme sanction of striking defendant's answer, and precluding them from warranted." putting in any affirmative proof is M. (1st 23. In Helms v Gangemi, 265 AD2d 203, 696 NYS2d 441 Dept. 1999), the defendant failed to comply with plaintiff's discovery demands. The Lower Court struck itsanswer, and the Court of Appeals affirmed the order. The Court held that "Defendant's persistent failure to produce the documents demanded by plaintiff and directed by the court was dilatory conduct pleadings." that warranted the extreme sanction of striking his M at 204. 24. In Pimental v City of New York, supra, the defendant's answer was stricken for failure to produce a witness with knowledge for a deposition. The lower court granted plaintiff's motion, and the Court of Appeals affirmed the order. "Unconditionally striking a pleading pursuant to CPLR 3126 is appropriate where the resisting party's default is deliberate and contumacious. Disobedience of a court order and frustration of the disclosure scheme provided sanction." for by the CPLR warrant imposition of the M at 468. 7 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 (1st 25. In Ritter Foundation, Inc. v Tebele, 222 AD2d 355, 635 NYS2d 628 Dept. 1995), the lower court denied plaintiff's motion to strike the defendant's answer for failing to respond to interrogatories for more than seven months. The Court of Appeals reversed the order, holding that "While the striking of a pleading pursuant to CPLR 3126 for failure to comply with an order of disclosure is an extreme and drastic remedy, here it is warranted by defendant's months." defiance of the demand for interrogatories for more than seven M_at 629 26. In Pan World Construction Corp., v 791 Park Avenue Corp., 185 Ad2d 105, 585 (1St NYS2d 731 Dept. 1992), the defendant failed to appear at depositions, never produced a witness, and offered no reason for the absences. The Court of Appeals struck their answer, holding that "the defendant's default in disclosure was clearly deliberate, warranting the sanction of (c.o.)." striking its answer and counterclaims Further, the court noted that in defending against such a motion, the defendant had to "submit an affidavit of merit from a person competent to attest defense." to the meritorious nature of the M at 107. (1st 27. See also, Sandcham v Sonnenschine, 246 AD2d 477, 667 NYS2d 257 Dept. 1998), (Court of Appeals affirming lower court's order striking defendant's answer for its noncompliance with court ordered discovery); Stark v Reliance National Indemnity Co., 273 (1st AD2d 148, 710 NYS2d 893 Dept. 2000) (dismissal of the plaintiff's complaint proper for its willful noncompliance with their discovery obligations); 28. As can be seen from the above cases, both the New York State Court of Appeals and the Appellate Division, First and Second Department, no longer tolerate a situation where a defendant has failed to respond adequately to discovery demands in a timely fashion, and hence frustrates the discovery scheduled issued by the court. Here defendant's failure to conduct depositions in accordance with court order clearly fits into the above described situations. When 8 of 9 FILED: BRONX COUNTY CLERK 01/09/2023 01:27 PM INDEX NO. 35218/2020E NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 01/09/2023 this situation occurs, the proper remedy according to both Courts is to strike the answer of the defaulting defendants. 29. For all of the foregoing reasons, it isrespectfully requested that in addition to the attorneys' specific relief sought herein, that costs, fees and sanctions be awarded to plaintiff s attorneys, to be paid by defendant due to their cavalier disregard exhibited herein, including the necessity of the within application. WHEREFORE, Plaintiff respectfully requests the within motion be granted in all respects and that this Court grant such other and further relief as to this Court seems just and proper. Dated: New York, New York January 9. 2023 ARCELO A BUITRAGO 9 of 9