Johnson v. City of New York

Dec 3, 1992
Versions:188 A.D.2d 302
590 N.Y.S.2d 485
1992 N.Y. App. Div. LEXIS 13650

Order, Supreme Court, Bronx County (Herbert Shapiro, J.), entered September 19, 1991, granting plaintiff’s motion to set the matter down for an assessment of damages for defendants’ failure to comply with *303the court’s March 4, 1991 order striking defendants’ answer unless, inter alia, defendant Maurer was produced for a court ordered examination before trial, unanimously affirmed, without costs or disbursements.

We agree with the IAS Court’s assessment that defendants’ repeated failures to locate ánd produce former Officer Maurer, now employed by the New York City Fire Department, for deposition, is "inexcusable” and find no abuse of discretion in its setting the matter down for an assessment of damages after striking defendants’ answer for their failure to comply, without a justifiable explanation, with two prior court orders. Nowhere in this record is there any indication of any action on the part of defendants to produce Officer Maurer or any of the other three witnesses to the occurrence. In the absence of an adequate excuse therefor, a court may reasonably infer that a party’s repeated failure to appear for court ordered depositions or to comply with disclosure requests constitutes willful and contumacious conduct (see, Chase Manhattan Bank v Abad, 131 AD2d 312). Concur — Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.