YIN KUEN CHAN TANG v. “John Doe”, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

YIN KUEN CHAN TANG, et al., Plaintiffs-Respondents, v. HONG KONG CHINESE HERBAL COMPANY, INC., et al., Defendants-Appellants, “John Doe”, Defendant.

Decided: January 16, 1997

Before MILONAS, J.P., and ROSENBERGER, RUBIN, WILLIAMS and ANDRIAS, JJ. James C. Napoli, for Plaintiffs-Respondents. Edward P. Dunphy, for Defendants-Appellants.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about November 6, 1995, which, insofar as appealed from, denied defendant-appellant's motion to vacate a prior order, same court and Justice, striking its answer upon its failure to appear at a disclosure compliance conference, and order, same court and Justice, entered on or about January 18, 1996, which, insofar as appealed from, denied defendant-appellant's cross motion to vacate plaintiff's note of issue and certificate of readiness, unanimously affirmed, without costs.

Appellant's answer was properly struck when it failed to appear at the compliance conference, where the conference had been scheduled in a previous written order rendered in open court in counsel's presence three months earlier, and its excuse of law office failure in the form of a computer crash the day before the conference not yet repaired the day of the conference did not explain or justify its noncompliance with prior court-ordered discovery.   Such failure indicates willful and contumacious conduct justifying striking the answer.   Appellant's subsequent motion to vacate plaintiff's note of issue and certificate of readiness was also properly denied, since any discovery that has not yet been completed is primarily because of its own inaction.

MEMORANDUM DECISION.