RIOS v. 1420 REALTY CO (1998)

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered July 10, 1997, which, inter alia, granted plaintiff's motion to strike defendants' answer unless they appeared for depositions within 30 days and denied defendants' cross-motion for a special discovery conference, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, plaintiff's motion denied and defendants' cross-motion granted.

Under the circumstances presented, in this personal injury action arising from the shooting of plaintiff by unknown assailants who allegedly gained access to his apartment building through a broken entry door, where defendants' proposed witness appeared for a court-ordered examination before trial, but was reluctant to testify because he was fearful of his own safety due to alleged threats of physical violence, including death threats, to prospective defense witnesses, the motion court, before entering the conditional order striking defendants' answer, should have at least held the special discovery conference requested by defendants to determine the validity of such allegations before making such order as is just to assure plaintiff adequate pre-trial disclosure.

MEMORANDUM DECISION.