ROCCO v. [And A Third Party Action] (2001)

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about October 31, 2000, which granted plaintiff's motion and defendants-respondents' cross motions to strike the common answer of defendants-appellants Advantage and Montalvo unless the latter were produced for examination by December 1, 2000, unanimously affirmed, without costs.

The testimony of defendant Montalvo, as the security officer in control of the elevator that crushed plaintiff's decedent, was crucial to the proper preparation of this wrongful death action.   Montalvo's failure to appear at any of the depositions that were repeatedly adjourned and re-scheduled for his convenience constituted willful, deliberate and contumacious behavior (Siegman v. Rosen, 270 A.D.2d 14, 704 N.Y.S.2d 40).   Under such circumstances, the court has broad discretion (CPLR 3126) to impose an appropriate sanction, which includes the striking of the defendant's responsive pleading (Toribio v. J.D. Posillico, Inc., 268 A.D.2d 394, 702 N.Y.S.2d 278;  Lehman Govt. Sec. v. Enhanced Treasury Returns Corp., 216 A.D.2d 255, 629 N.Y.S.2d 13).   The court's conditional order, striking Montalvo's answer unless he appeared by a date certain, was a reasonable exercise of that discretion (Besson v. Beirne, 188 A.D.2d 330, 591 N.Y.S.2d 14).   The fact that said defendant's whereabouts are currently unknown is no bar to such a remedy (Reitte v. Entermy Cab Corp., 162 A.D.2d 259, 556 N.Y.S.2d 617).

Montalvo's employer, defendant Advantage, was guilty of the same pattern of willful and contumacious conduct in failing to produce the witness and concealing information that could have been used to locate him.   As a party closely united in interest with Montalvo, Advantage was subject to the same sanction.