BRIANO v. LKT TRANSPORT (2005)

In an action to recover damages for personal injuries, the defendants LKT Transport and David Le appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated October 13, 2004, which denied their motion pursuant to CPLR 3113 to permit David Le to be deposed by open commission, and granted the plaintiff's motion pursuant to CPLR 3126 to preclude them from offering any testimony or evidence at trial to the extent of precluding them from testifying at trial regarding liability and the “accident's impact upon damages,” in the event they failed to produce a representative for deposition within 60 days.

ORDERED that the order is affirmed, with costs.

 The nature and degree of a penalty imposed pursuant to CPLR 3126 for failure to comply with discovery is within the trial court's discretion (see Razmilovic v. Dowd, 14 A.D.3d 546, 789 N.Y.S.2d 191).   The appellants failed to appear for a court-ordered deposition.   Under the circumstances, the court providently exercised its discretion in directing the appellants to appear for depositions within 60 days or be precluded from testifying at trial (see Razmilovic v. Dowd, supra;  Reyes v. The Vanderbilt, 303 A.D.2d 391, 392, 755 N.Y.S.2d 873).

The appellants' remaining contentions are without merit.