Opinion
2011-10-18
Patricia FORBES, Plaintiff–Respondent,v.NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants.
Steven S. Efron, New York (Renée L. Cyr, of counsel), for appellants.Roth & Roth, LLP, New York (David A. Roth of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered May
5, 2010, which, in an action for personal injuries, denied defendants' motion to vacate an order granting plaintiff's motion to strike their answer for failure to comply with discovery orders, unanimously affirmed, without costs.
Denial of the motion was proper inasmuch as defendants' proffered excuse of “law office failure” was not credible ( see Gonzalez v. Praise the Lord Dental, 79 A.D.3d 550, 912 N.Y.S.2d 403 [2010] ). Defendants' pattern of noncompliance with court-ordered disclosure over a period of several years gives rise to an inference of willful and contumacious conduct that warranted the striking of the answer ( see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010]; Bryant v. New York City Hous. Auth., 69 A.D.3d 488, 893 N.Y.S.2d 47 [2010] ). Furthermore, the discovery responses that defense counsel claims would have demonstrated compliance with the discovery orders post-dated the return date of the motion ( see Gonzalez at 550, 912 N.Y.S.2d 403).
Defendants also failed to demonstrate a meritorious defense to the action. The evidence offered solely on reply is entitled to no consideration by a court ( see Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 825 N.Y.S.2d 480 [2006]; Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 626, 630 N.Y.S.2d 1003 [1995] ).
SAXE, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, RICHTER JJ., concur.