ALMONTE v. KSI TRADING CORPORATION (2019)

Orders, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about September 8, 2017, and on or about December 5, 2018, which, respectively, granted defendants' motion to strike the complaint for failure to produce plaintiff for deposition, or in the alternative, to preclude plaintiff from testifying at trial as to each and every item of damages set forth in the bill of particulars, unless plaintiff was made available for deposition on or before February 28, 2018, and denied plaintiff's motion to vacate the September 8, 2017 order, unanimously affirmed, without costs.

Plaintiff commenced this action on or March 25, 2014.  He was subsequently incarcerated.  Pursuant to a October 14, 2014 compliance conference order, plaintiff was to be deposed on December 12, 2014.  A second compliance conference order, dated December 1, 2015, directed plaintiff's deposition to be held on or before February 2, 2016, at the location of plaintiff's incarceration.  Over a year later, plaintiff was not deposed, and defendants moved to strike the complaint, or in the alternative, preclude plaintiff form testifying at trial as to each and every item of damages set forth in his bill of particulars.  Defendants also noted that plaintiff's counsel had advised them that plaintiff was incarcerated in Brooklyn, New York, but through defendants' own investigation, they discovered that plaintiff was incarcerated in Miami, Florida.  The court providently exercised its discretion in issuing a conditional order striking plaintiff's complaint for failure to produce plaintiff for deposition, or in the alternative, to preclude plaintiff from testifying at trial, unless plaintiff was produced by a certain time, based on plaintiff's failure to comply with the discovery orders (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 79, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010];  Vaca v. Village View Hous. Corp., 145 A.D.3d 504, 505, 43 N.Y.S.3d 42 [1st Dept. 2016] ).

On January 31, 2018, the parties entered into a stipulation agreeing that plaintiff's deposition was to be conducted on or about March 31, 2018, due to plaintiff's counsel's representation that plaintiff would be transferred from the Florida facility to either a New York or New Jersey facility.  Plaintiff then moved on March 28, 2018 to vacate the court's conditional order, on the ground that instead of being transferred to New York or New Jersey, plaintiff was transferred to Oklahoma.  Counsel did not demonstrate that he attempted to make plaintiff available to defendants, why plaintiff was unable to be deposed, and failed to adequately address his misrepresentation to defendants that plaintiff would be transferred to either New York or New Jersey.  Accordingly, the court properly granted defendants' motion pursuant to CPLR 3126, since plaintiff's continued pattern of noncompliance with court orders warranted an inference of willful noncompliance (see Perez v. City of New York, 95 A.D.3d 675, 677, 944 N.Y.S.2d 553 [1st Dept. 2012];  Bryant v. New York City Hous. Auth., 69 A.D.3d 488, 489, 893 N.Y.S.2d 47 [1st Dept. 2010] ).