Motion-Secondary: Yijie Zhu v. David Grinstead, Laura Mccallum Grinstead, State Mgt. Co. Llc, City Of New York

On October 25, 2018 a Motion-Secondary was filed involving a dispute between Yijie Zhu, and City Of New York, David Grinstead, Laura Mccallum Grinstead, State Mgt. Co. Llc, for Torts - Other (Premise - Municipal) in the District Court of Kings County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------ ---------- AFFIRMATION
-----------------------------------------------X
YIJIE ZHU IN SUPPORT
INDEX#:
Plaintiff(s), 521502/2018

-against-
ASSIGNED
TO:HONORABLE
DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD,
LIZETTE COLON
CON. STATE MGT. CO. LLC AND CITY OF NEW YORK

Defendant(s).
----- -- -------------------- ------------------X

JOHN K. KOUROUPAS, an attorney duly admitted to practice before the Courts of this

State, affirms the truth ofthe following matters, under penalty of perjury:

1. I am member of the law firm of GREENBERG & STEIN, P.C., attorneys for the

plaintiff, YUIE ZHU, herein, and as such am fully familiar with the facts and proceedings herein.

2. I submit this affirmation in support of plaintiff's application: A) Pursuant to CPLR

Plaintiff'
§3103(9) issuing a protective order deeming s YUIE ZHU deposition waived by the

defendant(s) in this action; B) pursuant to CPLR §3126 and NYCRR 130-1, striking the answer of

the defeldant's, DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, AND CONN.

STATE MGT. CO. LLC , and granting the plaintiffjudgment on all liabilityissues, and fora further

order setting this matter down for an inquest, on the grounds thatthe defendants have willfully and

unjustifiably failed to appear at Court-ordered d po:itions or in the alternative; C) precludiñg

defendant flum offering testimony at the time of trial for their failure to appear at Court-ordered

depnamana and in to respond to the aforesaid plaintiffto file her Note of
failing orders; D) allowing

Issue and Statement of Readiness wit'uout waiving her right to said EBT and for an award of

sandien=, and for an order directing the defendant(s) counsel to pay the plaintiff's costs and

disbursements of this action, and for such other and further relief as your Honor may deem just and

proper.

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3. The within afHrmation is submitted in accordance with the provisions of 22

N.Y.C.R.R. 202.7 in order to demcnstrate the good faith basis for the within request for judidal

intervention.

4. Plaintiff has acted in good faith by attending all Court Conferences and complying

Defendants'
with all Court Orders and serving on all owed discovery. Said orders are annexed

"A"
hereto as Exhibit and "B". In addition, Said Order extended the original amount of time that

defendant(s) had under the CPLR to proceed with discovery.

defendants'
5. At this point, however, this application has been necessitated by willful

and centssious repeated refusal to take Plaintiff s deposiEans although Plaintiff s do not owe any

and their failure to appear at Court-order depa ions and repeated failure to with
discovery, comply

prior orders of this Court dated May 5, 2019 & February 25, 2020. As a result,the conduct of the

Defendant's in this matter has been lax and flown in the face of the rules of the Courts and the

C.P.L.R., and now has formed a pattern of willful and e~d-cious behavior thus making this

motion necessary.

6. The foregoing adequately demonstratesthatPlaintiffhas made a good effort to resolve

this discovery disputer without resort to motion practice in compliance with 22 N.Y.C.R.R. 202.7.

PROCEDURAL HISTORY

7. This is a personal action that arose on September 4, when plaintifFtripped
injury 2017,

and fell over a defect on the sidewalk in front of 525 State Street, located in Brooklyn, NY 11217.

This incident was a result of the defendant's negligence in the ownership and maintenance of said

sidewalk.

8. A timely Notice of Claim was filed and Plaintiff thereafter appeared for a hearing

pursuant to General Municipal Law §50H. Swescquently, Suit was initiated by service of a

summons and complaint and thereafter issue was joined by service of an answer (see Exhibit "C").

9. On May 5, 2019, a Preliminary Conference Order was issued by the Court setting out

discüvery dates for Plaintiffand Defendant's to respond to and set forth dates for both depositions to

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be held (see Exhibit "A").

10. Pursuant to the Pralimi=_ary Conference Order, depositions were to be held on October

2019 for October 2019 & October 2019 for defedant=. no depmmana
1, Plaintiff, 8, 15, However,

were held on said date.

11. On February 25, 2020, a Compliance Conference Order was held in this Court and a

Compliance Conference Order was entered into on consent of all parties (see Exhibit "B").

Pursuant to the Compliance Conference Order Plaintiff was to Ele his Note of Issue by September

25, 2020.

12. On 02/25/2020, a CompEance Conference was held in this Court and a Compliance

Conference was Order was entered into on consent of all parties (see Exhibit "B"). Pursuant to the

Compliance Conference Order Plaintiff was to file his Note of Issue by 09/25/2020.

13. The order specified that ALL PARTIES were to appear forDeposition's on June 25,

2020, for Plaintiff's and June 6, 2020, July 7, 2020 and July 14, 2020. Nonetheless, despite said

Court Order, Defendants not only refused to appear for said deposition as ordered, but also refused

to conduct the depasinon of the Plaintiff as required by said Court Order. Plaintiff clearly expressed

to Defendants their iñtcñticñs to comply with said Court Order and made Plaintiff available for said

deposition . Deedanta mairesin-1 their steadfast refusal to conduct depositions.

14. At this time, no new compliance conferences or deposition have been scheduled. Itis

readily apparent that Defendants LAURA McCALLUM GRINSTEAD, CITY OF NEW YORK,

AND CON. STATE MGT. CO. LLC. have no intation of appearing at the Court-ordered

Plaintiffs'
depositions, have no interest in taking deposinana and their disregard of the prior dates is

willful and contumacious. Itis clear defer.dar.ts only interests isto delay this case.

15. The aforementioned depositions are obviously necessãry for the proper prosecution of

this case. As can be seen Defendants have now disregarded and failed to comply with prior Orders

of this Court dated May 5, 2019, and February 25, 2020.

16. Defendant's failure to comply with now two (2) prior Court Orders warrants the

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striking of their answer. They have failed to appear two (2) times for depositions and provide

desma+3ry evidence which goes directly to the hear of this case. Further, they have failed to

appear to take Plaintiff'sdeposition.

17. As the above procedural history dictates, d#-ht's repeated failure to appear to

Court-ordered depreinos warrants the striking of their answer. In addition, they have failed to

appear for depositions nmnerous times. Itis clear based on the above thatDAdant's behavior has

been willful and contumacious since they have repeatedly frustrated the discovery schedule set out

by the Preli:ninary & CGmpliance Conference Orders. They are now ignoring Court Orders with

impunity and repeatedly failed to appear for depositions with no excuses.

18. An Order stops being an Order when it is not enforced. As such, since defendants

LAURA McCALLUM GRINSTEAD, CITY OF NEW YORK, AND CON. STATE. MGT. CO.

LLC., have without explanation willfully and ccer-siõüsly blatantly disregarded sumerous

Orders & Dernands, the Court should sanction defendants.

19. As the within case-law makes clear, the New York State Court of Appeals and the

Appellate Division, Fiat Department no longer tolerates a situation, such as here, where the

defendants has failed to respond to Court Order in a timely &=Man, and, has issued several

deisions striking defendant's answers in the above.

20. Based on the aforeæ+ioned, it is clear that the def~±nts have no intention of

defendants'
appearing for a deposition. Any further efforts of obtaiñiñg the dq-:sineñ will be a

defêñdente'
complete waste of time. Given the actions in this matter clearly amounts to willful and

defendants'
contumacious behavior. Thus, an order striking the answeris warranted.

21. In the alternative, if this Honorable Court does not find grounds to strike the

defêñdants'
argument, your affirmit requests that this Court request that a protective order be

granted deeming the plaintiffs deposition waived and order that the Plaintiff be allowed to more

with defendant's deposition.

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STRIKING DEFENDANT'S ANSWER IS AN APPROPRIAT E REMEDY

19. Defendant's floudng of a self-executing court order, requiring production of a witness

on a date certain, without good cause and winuout contacting the court for relieftherefrom, was

willful and contumacious conduct warrr.ñting the sanction of striking dcfcadant's answer,

defendanis were cognizant of the repercussions of their failure to produce, but took no action,

instead taking the position, at their peril, that the Court would tolerate their failure to comply with

the rules of the Court. Itis clear that this behavior be no longer tMerated. Rampersad V. New York

City Department of Education, et al;--AD3---N.Y.S.2d---, 2006 WL 1601669 (N.Y.A.D. 1 Dept.),

2006 N.Y. Slip Op. 04770.

20. Based on the picccdural history outlined above it is clear that the defendent's

unexplained failure to produce a competent witness for depositions is both willful and

contumacious.

21. The sanctions for non-disclosarc are provided by C.P.LR. §3126, which states as

follows:

If any party, ... refuses to obey an Order for disclosure or willfully fails to
disclose information which the court finds ought to be disclosed, the Court may
make such orders with regard to the failure or refusal as are just, among them: a
person who at the time a deposition is taken or an examination or inspection is

made, is an officer, director, member, employee or agent of a party or otherwise
under a party's control, refuses to obey an order for disclosure or willfully fails to
disclose information which the court finds ought to have been disclosed pursuant
to notice duly served, the court may make such orders with regard to the failure
or refusal as are just, among them:

3. an order striking out pleadings,...

22. The New York State Court of Appeals has statedthat where a party disobeys a court

order and by his conduct frustrates the disclosure scheme provided by the C.P.LR., itis within the

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order and by his conduct fi-estratesthe disclosure scheme provided by the C.P.L.R., itis within the

discretion of the trialcourt to strike the pleading of the defaul+bg party. See Zletz v Wetanson, 67

N.Y.2d 711,490 N.E.2d 852, 499 N.Y.S.2d 933, (1986).

23. The Court of Appeals revisited the issue in Kihl v Pfeffer and Honda Motor Co.

Ins 94 N.Y.2d 118, 722 N.E.2d 55, 700 N.Y.S.2d 87 (1999) and re-affirmed theirdecision in Zietz,

supra. In _Kilg, the defendant moved to strike the plaintifPs 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 disinissal of the

complaint as plaintiff s responses were "woefully inad wate and totally unresponsive in clear

order."
violation of the Court's M_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 Judge's

complaiñt."
discretion to dismiss the M at 122. The Court further stated that "If the credibility of

court orders and the integrity of our judici=l system are to be maiñtaiñcd, a litigant cannot ignore

impunity."
court orders with E Finally, the Court stated that "enmpliance with a disclosure order

requires both a timely response and one that evinces a good-faith effort to address the requests

meaningfully."
&
24. The Second Department has followed the decisions in Zletz and Kihl, consistently

ce="--i-"
holding that "willful and behavior, which warrants the sanctions of C.P.L.R. 3126,

can be inferred from a defaulting party's failure to comply with the court's directives coupled with

either no excuse or an isdmuste excuse for the defaults. Porreco v. Selway, 225 A.D.2d 752, 640

N.Y.S.2d 171 (2nd Dept 1996); DeGennaro v Robinson Textiles, 224 A.D.2d 574, 638 N.Y.S.2d

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692 (2nd Dept., 1996); Forestire v. Inter-Stop, Inc., 211 A.D.2d 751, 621 N.Y.S.2d 686 (2nd Dept.

1995); Schneider v City of New York, 217 A.D.2d 610, 629 N.Y.S.2d 473 (2nd Dept. 1995); Town

of Sou±ampton v Salten, 186 A.D.2d 796, 589 N.Y.S.2d 355 (2nd Dept. 1992); and Obelande v

Levi, 207 A.D.2d 437, 615 N.Y.S.2d 903 (2nd Dept., 1994).

25. A court may strike pleadings as a sanction against a party who refuses to obey an

order of disclosure or r"12"y failsto disclose informanon 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 a

matter of discretion. Soto v City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691 (2nd Dept.,

1993); and Spira v Antoine, 191 A.D.2d 219, 596 N.Y.S.2d (1stDept.,1993) "the drastic remedy of

striking an answer is appropriate where there is a clear showing that the failure to comply with

discovery demands is willful, coñtanacicus or in bad faith", Harris v City of New York, 211

A.D.2d 663, 622 N.Y.S.2d 289 (2nd Dept. 1995); Lestingi v City of New York, 209 A.D.2d 384,

618 N.Y.S.2d 731 (2nd Dept., 1994).

26. While the lower courts have traditicñally 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 issüañce of repeated order to produce, the Second Department has not been as

tolerant. The case of Herrera v City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647 (2nd Dept.,

1997) is an example of the Court's intolerance. In Herrera, the lower court decided not to strike the

City's answer, despite yearlong non-camplisce with discovery demands, the preliminary

conference order and stipulations. On appeal, the Second Department reversed the order, and issued

an Order striking the dded-st'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

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directing disclosure,", and that "At no time did the defendant offer a reasonable excuse for its

rapeatad failures to comply with plaintiff's outstmMag discovery demands and court orders

disclosure."
directing Id_at 476.

27. In Espinal v City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610 (2nd Dept.

1999) the Appellate Division, Second Department revisited the standard estab'dshmi in Herrera,

supra. In Espinal, the plaintiff had moved the lower court for an Order striking the defendant's

answer for itsrepeated failure to comply with orders directing discovery, which was denied. On

appeal, the Second Department reversed the lower court's decision citing Herrera, supra, stating that

the defedant's willful and contumaciõüs conduct could be inferred from their repeated failures to

comply with discovary orders. The Appellate Division also stated that once the plaintiffsatisfiesthe

initialburden of proving veillf±ess, the burden shiftsto the defendets to offer a reacemble excuse

for theirfailure to comply.

28. Since Herrera, Supra, the Appellate Division, Second Department has affirmed

orders striking the defedant's answer for failing to provide disecrvery in numerous cases, including

the following: Montgomery v City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464 (2nd Dept.,

2002); Emanuel v Broadway Mall Properties et al,293 A.D.2d 708, 741 N.Y.S.2d 278 (2nd Dept.

2002); Automotive M==facturina and Supply Company v Salvatore Saccullo, 2002 N.Y. App. Div.

LEXIS 11674 (2nd Dept., 2002); Patterson v Greater New York Corporation of Seventh Day

Adventists. et al.. 284 A.D.2d 382, 726 N.Y.S.2d 278 (2nd Dept., 2001); Quinn v Menzel, 282

A.D.2d 513, 722 N.Y.S.2d 892 (2nd Dept., 2001); Settembrini v settembrini, 270 A.D.2d 408, 704

N.Y.S.2d 641 (2nd Dept., 2000); Gamett v Hudson Rent a Car, 258 A.D.2d 559, 685 N.Y.S.2d 463

(2nd Dept., 1999); Hudson v City of New York, 267 A.D.2d 351, 700 N.Y.S.2d 67 (2nd Dept.,

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1999); Sydney v Port Authority of New York and New Jersey, 259 A.D.2d 484, 684 N.Y.S.2d 894

(2nd Dept., 1999); Lavi v Lavi, 256 A.D.2d 602, 683 N.Y.S.2d 131 (2nd Dept., 1998); DiDomenico

v C+S Aeromatik Supplies, Inc., 252 A.D.2d 41, 682 N.Y.S.2d 452 (2nd Dept. 1998); Tellas v City

of New York, 256 A.D.2d 403, 681 N.Y.S.2d 769 (2nd Dept., 1998); Fappiano v City of New York,

241 A.D.2d 509, 661 N.Y.S.2d 529 (2nd Dept., 1997); Kubacka v Town of Hempstead, 240 A.D.2d

374, 657 N.Y.S.2d 770 (2nd Dept. 1997). See also, Oliveri v Carter, 256 A.D.2d 393, 681 N.Y.S.2d

558 (2nd Dept., 1998), where the Appellate Division, Second Department reversed a lower court

order dmying plaintiffs mofian to strike the defendant's answer.

29. In Montgomery v City of New York, Supra, the plaintiff moved to strike the answer

of the defendant for their refusal to produce a witness for ex= ==tion before trial. The lower court

partially granted the motion, only to the extent that the answer would be stricken unless the

defed-e produced a witness by a certain date. The Second Department reversed the lower court,

granting -¹±ETs motion in itsentirety, and struck the answer of the defcrdâñt. The court quoted

both Herrera and Espinal, and also stated that "a court may strikethe pleadings as a section against

a party who refuses to obey an order for disclosure or willfully failsto disclose infc-nation which

disclosed."
the court finds ought to have been IA at 386.

30. In Emanuel v Broadway Mall Properties et al,supra, the defedant failed to comply

with two court orders directing disclosure, and aftera protracted delay provided a partial response to

the plaintiff s discovery demands. The Appellate Division, Second Department struck the

defedets' defendants'
answers, stating that the non-compliace of the warranted the striking of

the answer "where a party disobeys a court order and by itsconduct frustrates the disclosse scheme

court"
provided by the C.P.L.R., dismissal of a pleading is within the broad discretion of the trial

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31. In Automotive MannA½g and Supply Company v Salvatore Saccullo, Supra,

the Second Departmcñt affirmed the lower court's order striking the answer of Defedent Saccullo,

finding that he failedto "comply with discovery demands3 since Saccullo ignored the orders of the

disclosure."
Supreme Court directing & at 3.

32. In Patterson v Greater New York Corporation of Seventh Day Adventists, et al.,

Supra, the Appellate Division affirmed the order of the lower court in striking the answer of the

defendant for failing to produce a witñcss with kncwledge for an examination before trial. The

Court held that such an order was appropriate "based on their repeated and inadecreately explained

trial."
failure to produce an essential witness for an examirwica before II at 383.

33. In Quinn v Menzel, Supra, the Second Department, in affirming the lower court's

order, held that the willful and ce=*-dans conduct of the third-party defedant could be inferred

from its"repeated failure to comply with court ordered discovery and the discovery demands of the

comply,"
pinintiff as well as the inadaquate excuse offered from its failure to citing
third-party

Espinal.

34. In Settembrini v Settembrini, Supra, the Second Department aflirmed the lower

court's order striking the answer of the defendant. The court found that "fbr more than a year, the

orders,"
defendant willfully disobeyed a multitüde of court and in doing so "repéstedly frustrated

trial."
disclosure refused
. . . and to appear for an examination before Id. at409

35. In Gamett v IIüds0ñ Rent a Car, Supra, the Second Department affirmed the lower

court's order striking the answer of the defendant. The Court held that "under the circumstances

here, where defendants supplied false and fraudulent information, we find that the court did not

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answer."
improvidently exercise itsdiscretion in granting the motion to strikethe E at 559.

36. In Hudson v City of New York, Supra, the lower court denied plaintiffsmotion to

strike the city's answer based on itsfailure to comply with discovery orders. In reversing the lower

court, the Second Department held that the dcfcñdañt's willful and ce±1macious conduct could be

inferred from its repeated failures to comply with Court orders directiñg diselesse and the

inadequate excuses offered to excuse itsfailure to comply, citing both Herrera and Espinal. In light

of thiswillful and ce±.-±cious behavior the Appellate Division, Second Department held that the

lower Court improvideñtly exercised itsdiscretion in denying plaintiffsmotion.

37. In Fappiano v City of New York et al.,supra, the Appellate Division affirmed the

def=±nts' appellets'
order of the lower court striking the answer. The Court found that "the

inordinate procrastination in full patrial disclosure, their non-cc=pE=:e with
making including

orders"
multiple warranted the striking of the answer.

In Kubacka v Town of North Hempstead, the Second Department affirmed the lower court's

decision striking the defendant's answer following daSadant's failure to comply with an Order

directing itto serve and file an amended Billof Particulars and responses to combined danands.

38. In Areenio v Cushman & Wakefield. Inc.. 227 A.D.2d 578, 642 N.Y.S.2d 968 (2nd

Dept 1996), the Second Department held that third-party defendant's answer was properly stricken

where it failed to comply with three separate court onlers which directed the production of

discovery. The Court held that the willful and contumacious behavior of the third-party defendant

"inferred"
could be from itsfailure to comply with three separate court orders, "coupled with no

excuse"
excuse or an inadequate for the defaults.

39. As can be seen from the above cases, both the New York State Court of Appeals and

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the Appellate Division, Second Department no longer tolerate a situation where a defendant has

failed to respond adequately to discovery d-4 in a timely fashion, and hence frustrates the

discovery scheduled issued by the court. Here defedant's failure to comply with the Court's

directives, which caused the delay of Plaintiff s note of issue, clearly fits into the above described

situatioñs. When this situation occurs the proper remedy accciding to both Court's to strikethe

answer of the defaulting defendants.

PLAINTIFF'S MOTION FOR AN ORDER
STRIKING DEFENDANT'S ANSWERS SHOULD BE
GRANTED FOR DEFENDANT'S FAILURES TO PRODUCE A
COMPETENT WITNESS FOR DEPOSITIONS

Defendants'
40. answer should be stricken for their failure to comply with court ordered

discovery, as well as their non-producticñ of a competent witness. The answers of the defendants

should be stricken forfailing to produce a competent witness for an examination before trialeven if

dhdants claim that there are no witnesses available to be produced. The Second Department no

longer tolerates a hanan where a defendant has disappeared or has made unavailable to
[herselfj

testify at an examination before trial,and, has issued several decisions striking a defedet's answer

where they have failed to appear in these circesteces. Thus, according to a line of decisions from

the Second Department, the fact that a defendant has disappeared or made [herselfj unavailable

provides no basis for denying amotion to strike [her] answer.

41. In Torres v Martinez, 250 A.D.2d 759, 673 N.Y.S.2d 182 (2nd Dept., 1998) the

plaintiff moved the lower court for an order striking the defendant's answer for failing to appear at a

depasiden. In opposition to plaintifPs motion, the defendant sileged that its client's whereabouts

were unknown and thatthey made and were making good faith efforts to locate the defendant. The

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lower court granted plaintifPs motion only to the extent of precluding the defedant from testiffing

at trial.On appeal by the plaintiff, the Second Department modified the lower Court's decision by

conditionally striking the defendant's answer. The unanimous AppeHate Divisicñ went on tosay

"[the] fact that a deferesñt has disappeared or made limself unavailable provides no basis for

deposition"
denying a moticñ to strike his answer for failing to appear at a citing, Dash v DK

Transit, Inc.. 239 A.D.2d 313, 657 N.Y.S.2d 89, Rowe v Lee Gee Sook, 224 A.D.2d 404, 738

N.Y.S.2d 120; Spataro v Ervin, 186 A.D.2d 793, 589 N.Y.S.2d 73; Foti v Suero, 97 A.D.2d 748,

468 N.Y.S.2d 170.

42. In Bates v Baez et al.,749 N.Y.S.2d 424, 2002 N.Y. App Div. LEXIS 10699 (2nd

Dept., 2002), the Second Department struck the answer of the d -dant's, stating that the "willful

and cc±rsicus character of a party's conduct can be inferred from his or her repeated failuresto

trial,"
appear for exd±lan before and that "the fact that a defendant has di=appeared or made

answer."
himself or herself anavaildble is not a basis for denying a motion to strike his or her Id at

43. In Patterson v Greater New York Corporation of Seventh Day Adventists, et al..

supra, the Appellate Division affumed the order of the lower court in striking the answer of the

defendant for failing to preduce a witness with knowledge for an excinanen 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 examination before trial."I.1at 383.

44. In Mills v Ducille, 170 A.D.2d 657, 567 N.Y.S.2d 79 (2nd Dept., 1991), the

defedent had adjourned ex±±na before trial pursuant to notice on several occasicas and was

in default of only one order of the trialcourt directing defendant's appearance at an ers.minatica

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before trial. This Court held that singular default, coupled with no adequate excuse for the default,

was a suHicient basis to strike defendant's answer.

45. In Fumiture Fantasy v Cerrone, 154 A.D.2d 506, 546 N.Y.S.2d 133 (2nd Dept.,

1989), this court held that the answer of the defendant was properly stricken where the defcñdâñt

failed to comply with two court orders directing production of a witness for an examination before

trial. The Court held that the defedat's vague description of the specific efforts expended to

witness'
secure the attendance fell short of a reasonable excuse.

46. In Cavallino v. Sansky, 251 A.D.2d 361, 672 N.Y.S.2d 812 (2nd Dept., 1998), the

appellate divisioñ in affirming the lower court's decision stated that Contrary to appellants

contention, the Supreme Court did not impmvidently exercise itsdiscretion in granting plaintiff s

moden striking the defendant's answer where the defendant has disappeared or intatimally made

himself unavailable for several scheduled examiñ*ieñs before trial.

47. The same result was reached in Boera v Batz, 236 A.D.2d 349, 645 N.Y.S.2d 323

(2nd Dept. 1997).

48. In Rowe v Lee Gee Sook, 224 A.D.2d 404, 638 N.Y.S.2d 170 (2nd Dept., 1996) the

lower court granted plaintiff s incticñ for an order striking ad=d=nt's answer for failing to appear

for court ordered depositions. On appeal, the Appellate Division, Scond Department affirmed the

lower court's decision stating: "The fact that a dWdant has disappeared or made himself

unavailable provides no basis for denying a moden to strike his answer for failure to appear at a

Case Info

Judge

Johnny Lee Track Judge’s New Case

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Document Filed Date

September 01, 2020

Case Filing Date

October 25, 2018

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Parties

City of New York Defendant
Counsel, Corporation Attorney for the Defendant
David Grinstead Defendant
FLOMENHAFT, FERN Attorney for the Defendant
Laura Mccallum grinstead Defendant
MISHLER, STEPHANIE CARA Attorney for the Defendant
State Mgt. Co. LLC Defendant
STEIN, JOSHUA NEIL Attorney for the Plaintiff
Yijie Zhu Plaintiff
ZACHARY CARTER Attorneys for Defendants
SETH GREENBERG Attorneys for Plaintiffs
THOMAS O'CONNOR Attorney
ROSEMARIE HEBNER Attorneys for Defendants

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Motion-Secondary: Yijie Zhu v. David Grinstead, Laura Mccallum Grinstead, State Mgt. Co. Llc, City Of New York

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