Opinion
June 19, 1984
Order, Supreme Court, New York County (S. Schwartz, J.), entered February 7, 1984, which denied defendant's motion to renew and amend a previous order and judgment of the Supreme Court, New York County, entered December 28, 1983, which granted plaintiff's motion to strike the defendant's answer and directed an inquest, reversed, on the law and in the exercise of discretion, to grant the motion to renew, and on renewal to vacate the previous order and judgment of December 28, 1983, and to reinstate the answer upon condition that defendant pay to the plaintiff $5,000 within 20 days of service of a copy of this order on defendant's counsel, without costs. If defendant does not comply with this direction, the order appealed from is affirmed, with costs. ¶ Appeal from order and judgment of the Supreme Court, New York County (S. Schwartz, J.), entered December 28, 1983, dismissed as subsumed within the above determination, without costs. ¶ Although the failure of the defendant promptly to produce certain documents directed by court order (see 95 A.D.2d 714) merits condemnation, particularly in light of prior and accompanying defaults, we are not persuaded that the totality of the circumstances justifies the striking of defendant's answer and the direction of an inquest in this complex action which presents substantial legal and factual issues. ¶ A significant monetary sanction seems to us an appropriate response to the circumstances presented, and one that should have a salutary effect on defendant's future conduct in this litigation. In imposing this sanction on the defendant, we do not wish to be understood as assuming that the plaintiff's actions during the course of the litigation have been free from fault. Although the record is inadequate to permit a definitive assessment, the already protracted character of defendant's deposition seems to at least raise a question as to possible harassment. We see no reason why it should not be possible promptly to conclude that deposition in a very few additional sessions.
Concur — Murphy, P.J., Sandler, Carro, Fein and Alexander, JJ.