CERVINI v. [And a Third-Party Action]. (2006)

Supreme Court, Appellate Division, First Department, New York.

Joe CERVINI, Plaintiff-Appellant, v. GREYSTONE BUILDING CO., Defendant, Ju Jeung Kim, et al., Defendants-Respondents. [And a Third-Party Action].

Decided: February 23, 2006

ANDRIAS, J.P., SAXE, FRIEDMAN, WILLIAMS, MALONE, JJ.

Michael A. Cervini, P.C., Jackson Heights (Robin Mary Heaney of counsel), for appellant. Ira B. Pollack & Associates, PLLC, New York (Ira B. Pollack of counsel), for respondents.

Order, Supreme Court, Bronx County (Nelson Roman, J.), entered on or about October 12, 2004, which, to the extent appealed from, denied so much of plaintiff's motion as sought an order striking the answer of defendants Ju Jeung Kim and Greystone Deli and Grocery, and directed said defendants to appear for depositions by November 10, 2004, unanimously affirmed, without costs.

Defendants demonstrated a reasonable excuse for failing to comply with deposition orders inasmuch as Kim was not fluent in English and thus could not understand the notices forwarded by counsel. Under the circumstances, the court providently exercised its discretion in requiring depositions by a date certain, or the preclusion from offering testimony at trial (see Palmenta v. Columbia Univ., 266 A.D.2d 90, 698 N.Y.S.2d 657 [1999] ).

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