DELGADO v. New York City Police Department, et al., Defendants. (2008)

Order, Supreme Court, Bronx County (Paul Victor, J.), entered October 24, 2006, which, insofar as appealed from as limited by the briefs, confirmed the recommendation of a Judicial Hearing Officer to deny plaintiffs' motion to strike the answers of defendants City of New York, Joseph Richardson and Steven Fischer, unanimously affirmed, without costs.

The drastic remedy of striking defendants' answers was properly denied for lack of a clear showing that defendants' failure to comply with the court's prior discovery orders was willful or contumacious (see CPLR 3126;  see also Frye v. City of New York, 228 A.D.2d 182, 643 N.Y.S.2d 90 [1996];  Dauria v. City of New York, 127 A.D.2d 459, 511 N.Y.S.2d 271 [1987] ).   The record evidence demonstrates that defendant City offered a reasonable excuse for its failure to produce several retired officers for depositions, that defendant Richardson appeared for his deposition, and that the circumstances presented do not warrant the striking of defendant Fischer's answer.