Rivera v. Torah

Sep 27, 2004
Versions:10 A.D.3d 715
781 N.Y.S.2d 912
2004 N.Y. App. Div. LEXIS 11051

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 (Jones, J.), dated March 17, 2004, as denied their motion to strike the defendant’s answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to strike the defendant’s answer. The record does not support a finding that the defendant willfully and deliberately failed to produce its witness for a deposition (see CPLR 3126; Byrne v City of New York, 301 AD2d 489, 490-491 [2003]; Ciánciolo v Trism Specialized Carriers, 274 AD2d 369, 370 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]; Brown v United Christian Evangelistic Assn., 270 AD2d 378, 379 [2000]). Altman, J.P., Krausman, Luciano, Mastro and Lifson, JJ., concur.