NUNEZ v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, the defendant City of New York, and the defendants New York City Transit Authority and Judlau Contracting, Inc., separately appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated May 17, 2006, which granted the plaintiff's motion pursuant to CPLR 3126 to strike their separate answers for failure to comply with court-ordered disclosure.

ORDERED that the order is affirmed, with one bill of costs.

 A court is authorized to strike the pleadings of a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [3] ).   Striking a pleading is appropriate where a party's conduct in resisting disclosure is shown to be willful and contumacious (see Kryzhanovskaya v. City of New York, 31 A.D.3d 717, 818 N.Y.S.2d 469;  Mendez v. City of New York, 7 A.D.3d 766, 778 N.Y.S.2d 501;  Alto v. Gilman Mgt. Corp., 7 A.D.3d 650, 776 N.Y.S.2d 823).   The willful and contumacious character of the defendants' failure to produce their witnesses for deposition can be inferred from their continuing noncompliance with three court orders directing their depositions, five adjournments of the scheduled deposition dates in defiance of the orders, and inadequate excuses for their failures to produce their witnesses for deposition (see Kryzhanovskaya v. City of New York, 31 A.D.3d 717, 818 N.Y.S.2d 469;  Careccia v. Metropolitan Suburban Bus Auth., 18 A.D.3d 793, 796 N.Y.S.2d 678;  Beneficial Mtge. Corp. v. Lawrence, 5 A.D.3d 339, 772 N.Y.S.2d 713).   Accordingly, the court providently exercised its discretion in granting the motion.