RODRIGUEZ v. UNITED BRONX PARENTS INC (2010)

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered August 26, 2009, which, to the extent appealed from, granted plaintiff's cross motion pursuant to CPLR 3126 to strike defendant's answer solely to the extent of granting plaintiff a missing witness charge as to Nadia James and Victor Martinez, unanimously modified, on the law and the facts, the cross motion to strike granted and the matter remanded to Supreme Court for a trial on the issue of damages, and otherwise affirmed, without costs.

 “Although actions should be resolved on the merits whenever possible (see Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 735 N.Y.S.2d 520 [2002] ), a court may strike a pleading as a sanction against a party who refuses to obey an order for disclosure (see CPLR 3126[3] )” (Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 171, 786 N.Y.S.2d 487 [2004] ).   A court may strike an answer only when the moving party establishes “a clear showing that the failure to comply is willful, contumacious or in bad faith” (see Palmenta v. Columbia Univ., 266 A.D.2d 90, 91, 698 N.Y.S.2d 657 [1999] ).

 Here, plaintiff established that defendant's failure to comply was willful and contumacious, given its repeated and persistent failure to comply with five successive disclosure orders (see Goldstein v. CIBC World Mkts. Corp., 30 A.D.3d 217, 817 N.Y.S.2d 19 [2006];  Min Yoon v. Costello, 29 A.D.3d 407, 815 N.Y.S.2d 78 [2006];  compare Pascarelli v. City of New York, 16 A.D.3d 472, 791 N.Y.S.2d 617 [2005] ).   Defendant's failure to adequately explain what efforts were made to locate the documents it failed to disclose, or to explain its inability to provide the last known addresses of its former residents or employees, also supports a finding that its failure to comply was willful.   Furthermore, defense counsel's “Affirmation of Search” did not indicate whether he was the custodian of defendant's records, what records were searched, who conducted the search, what the search consisted of, and the statement was made upon “information and belief.”   Accordingly, this statement is devoid of detail and insufficient.