LEE v. NY LLC (2018)

Order, Supreme Court, New York County (Debra A. James, J.), entered April 12, 2017, which granted plaintiff's motion to strike the answer of defendants 13th Street Entertainment LLC and Tri Hospitality, Inc., reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied.

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” (Palmenta v. Columbia Univ., 266 A.D.2d 90, 91, 698 N.Y.S.2d 657 [1st Dept. 1999] ).  Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith.  Although defendants failed to produce deposition witnesses in violation of two court orders, defendants' business was defunct and its former employees and officers were no longer within their control(see Ewadi v. City of New York, 66 A.D.3d 583, 888 N.Y.S.2d 12 [1st Dept. 2009];  Schneider v. 17 Battery Place N. Assoc. II, 289 A.D.2d 164, 165, 735 N.Y.S.2d 509 [1st Dept. 2001] ).

Defendants provided plaintiff with contact information for their employees and plaintiff could have subpoenaed such employees as nonparty witnesses.  Furthermore, defendants did not receive prior warning from the court that a failure to comply with the court orders would result in CPLR 3126 sanctions.  Accordingly, in light of the strong preference to resolve actions on their merits, plaintiff's motion to strike should have been denied (see e.g. Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 215, 735 N.Y.S.2d 520 [1st Dept. 2002] ).

I respectfully dissent.  I would affirm the order striking defendants' answer.

Defendants failed to produce deposition witnesses in violation of two court orders.  Defendants also failed to offer a reasonable excuse for their failure.  The fact that the businesses are now defunct does not excuse defendants from producing officers or owners.  Failure of an owner of a corporation to cooperate with its attorneys does not relieve a party of its obligation to appear for a deposition (see Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 786 N.Y.S.2d 487 [1st Dept. 2004] ).

All concur except Gische, J. who dissents in a memorandum as follows: