MAIGNAN v. NAHAR (2007)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Silverman, J.), dated April 17, 2006, which conditionally granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendant's answer unless he appeared for a deposition within a specified time.

ORDERED that the order is affirmed, with costs.

 To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct (see CPLR 3126;  Bates v. Baez, 299 A.D.2d 382, 749 N.Y.S.2d 424).   The willful and contumacious character of a party's conduct can be inferred from the repeated failures to comply with court-ordered discovery, coupled with inadequate explanations for these defaults (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Bates v. Baez, supra;  Patterson v. Greater N.Y. Corp. of Seventh Day Adventists, 284 A.D.2d 382, 726 N.Y.S.2d 278).   In opposition to that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendant's answer, the defendant's attorney merely alleged that his office had difficulty communicating with the defendant, and thus, it was unable to produce him for a deposition.   Contrary to the defendant's contention, the fact that he had disappeared or made himself unavailable did not provide a basis for denying that branch of the plaintiffs' motion which was to strike his answer for his failure to appear at a deposition and to comply with a court-ordered discovery request (see Bates v. Baez, supra;  Kennedy v. Class, 292 A.D.2d 503, 740 N.Y.S.2d 78;  Robinson v. Rollins Leasing Corp., 288 A.D.2d 367, 734 N.Y.S.2d 83;  Torres v. DeCordova, 262 A.D.2d 399, 691 N.Y.S.2d 312).   Under the circumstances of this case, the Supreme Court providently exercised its discretion in conditionally striking the defendant's answer.