Sayomi v. Rolls Kohn & Associates, LLP

Mar 18, 2005
Versions:16 A.D.3d 1069
791 N.Y.S.2d 752
2005 N.Y. App. Div. LEXIS 2887

*1070Appeal from an order of the Supreme Court, Erie County (Nelson H. Cosgrove, J.), entered January 20, 2004 in a legal malpractice action. The order denied plaintiffs’ motion to strike the answer and grant a default judgment and directed completion of the depositions of defendant’s principals within 60 days.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for the alleged legal malpractice of defendant law firm in its handling of the immigration matter of Adegboyega Sayomi (plaintiff). Supreme Court properly exercised its discretion in denying plaintiffs’ motion for an order striking defendant’s answer and granting a default judgment against defendant for failing to produce any of its principals for a deposition within the time set forth in a prior order of the court. Although depositions were scheduled prior to the expiration of the time set forth in the prior order, the depositions of defendant’s principals could not be conducted because the deposition of plaintiff, scheduled for the same day, spanned the entire day. Plaintiffs chose to bring their motion rather than reschedule the depositions.

The “striking of an answer [and granting of a default judgment] . . . for the failure to comply with court-ordered discovery is an extreme and drastic penalty which should not be invoked unless it is clearly demonstrated that the default was deliberate and contumacious” (Linwood Roofing & Contr. Co. v Olit Assoc., 123 AD2d 840, 840 [1986]; cf. Sony Corp. of Am. v Savemart, Inc., 59 AD2d 676, 677 [1977]). Here, the failure to complete the depositions of defendant’s principals was neither deliberate nor contumacious. Under the circumstances, the denial of plaintiffs’ motion was an appropriate exercise of the court’s discretion (see CPLR 3126). Present—Green, J.P., Scudder, Gorski, Martoche and Pine, JJ.