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

Case: Facey v.Silver Express Cab Corp.

Date: Sept. 20, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens injury lawyer)

Comment: An ongoing problem in accident case litigation in New York is "discovery." This is the middle of the lawsuit process, where each side is permitted to try to find out the other side’s position on the accident victim’s claim of negligence.

Often, a defendant refuses to take the time to work with an attorney assigned to defend him or her by an insurance company, figuring, "That’s what I have insurance for." This presents a problem for the attorney that represents that defense attorney as well as for the plaintiff’s side, which is entitled to the defendant’s version of the accident.

What the accident-victim’s lawyers want to avoid is having the defendant give his or her story or version of the event or accident for the first time only at trial, possibly surprising the plaintiff’s lawyer. So New York’s civil practice rules provide a fix. The side seeking discovery can apply to the court to sanction (punish) the non-complying side.

This appeals case addresses what form that punishment should take. The appellate court "downgraded" the defendant’s punishment from "striking the answer" – which would mean "game over" – to precluding (preventing) the defendant from testifying at trial – which leaves the defense free to present other evidence, just not its client’s testimony.

In an action to recover damages for personal injuries, the defendants Silver Express Cab Corp. and Mohammad Akbar appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated September 14, 2010, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike their answer.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's motion which was to strike the answer of the defendants Silver Express Cab Corp. and Mohammad Akbar and substituting therefor a provision granting that branch of the plaintiff's motion only to the extent of precluding the defendant Mohammad Akbar from offering any testimony at trial and otherwise denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party ... from producing in evidence designated things or items of testimony" or "striking out pleadings" (CPLR 3126[2], [3] ). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v. Queens Surface Corp., 58 A.D.3d 656, 871 N.Y.S.2d 657; Paca v. City of New York, 51 A.D.3d 991, 993, 858 N.Y.S.2d 772). Here, the record does not support a finding that the appellants willfully and contumaciously failed to produce the defendant Mohammad Akbar for a deposition. Under the circumstances, the appropriate remedy was an order precluding the appellants from calling Akbar as a witness at trial (cf. Patel v. DeLeon, 43 A.D.3d 432, 433, 840 N.Y.S.2d 632; Williams v. Ryder TRS, Inc., 29 A.D.3d 784, 785, 816 N.Y.S.2d 126).


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