SAYOMI v. ROLLS KOHN AND ASSOCIATES LLP (2005)

 Plaintiffs commenced this action seeking damages for the alleged legal malpractice of defendant law firm in its handling of the immigration matter of Adegboyega Sayomi (plaintiff).   Supreme Court properly exercised its discretion in denying plaintiffs' motion for an order striking defendant's answer and granting a default judgment against defendant for failing to produce any of its principals for a deposition within the time set forth in a prior order of the court.   Although depositions were scheduled prior to the expiration of the time set forth in the prior order, the depositions of defendant's principals could not be conducted because the deposition of plaintiff, scheduled for the same day, spanned the entire day.   Plaintiffs chose to bring their motion rather than reschedule the depositions.

 The “striking of an answer [and granting of a default judgment] ․ for the failure to comply with court-ordered discovery is an extreme and drastic penalty which should not be invoked unless it is clearly demonstrated that the default was deliberate and contumacious” (Linwood Roofing & Contr. Co. v. Olit Assoc., 123 A.D.2d 840, 840, 507 N.Y.S.2d 455;  cf. Sony Corp. of Am. v. Savemart, 59 A.D.2d 676, 677, 398 N.Y.S.2d 539).   Here, the failure to complete the depositions of defendant's principals was neither deliberate nor contumacious.   Under the circumstances, the denial of plaintiffs' motion was an appropriate exercise of the court's discretion (see CPLR 3126).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: