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Mateo v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Jul 20, 2000
274 A.D.2d 337 (N.Y. App. Div. 2000)

Opinion

July 20, 2000.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered September 10, 1999, which struck defendant-appellant's answer for failure to comply with court-ordered discovery, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the answer reinstated. Appeal from order, same court and Justice, entered November 22, 1999, which denied defendant-appellant's motion seeking to vacate the prior order, unanimously dismissed, without costs, as moot.

Adrienne DeLuca, for plaintiffs-respondents.

Timothy R. Capowski, for defendant-appellant.

Before: Tom, J.P., Mazzarelli, Lerner, Buckley, JJ.


Striking a pleading is a drastic remedy and is only warranted "where a clear showing has been made that the noncompliance with a discovery order was willful, contumacious or due to bad faith" (Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193, see also, Washington v. Alco Auto Sales, 199 A.D.2d 165). Here, defendant-appellant's failure to comply with the discovery order and appear for deposition was due to law office failure. There is no evidence indicating willful or contumacious conduct or an intent to abandon the defense. The motion court, therefore, erred in striking the answer.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Mateo v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Jul 20, 2000
274 A.D.2d 337 (N.Y. App. Div. 2000)
Case details for

Mateo v. City of New York

Case Details

Full title:MYRNA MATEO, ET AL., PLAINTIFFS-RESPONDENTS, v. CITY OF NEW YORK, ET AL.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 20, 2000

Citations

274 A.D.2d 337 (N.Y. App. Div. 2000)
711 N.Y.S.2d 396

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