Sean Mark Corrigan, et al., Plaintiffs–Appellants, v. New York City Transit Authority, et al., Defendants–Respondents.

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Supreme Court, Appellate Division, First Department.

Sean Mark Corrigan, et al., Plaintiffs–Appellants, v. New York City Transit Authority, et al., Defendants–Respondents.

2196N

Decided: November 15, 2016

Renwick, J.P., Moskowitz, Kapnick, Kahn, Gesmer, JJ. Bernadette Panzella, P.C., New York (Bernadette Panzella of counsel), for appellants. Lawrence Heisler, Brooklyn, for respondents.

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 15, 2014, which granted plaintiffs' motion to strike the answer and for sanctions pursuant to 22 NYCRR 130–1.1 or, in the alternative, to dismiss the affirmative defenses, preclude defendants from offering evidence, and grant summary judgment in plaintiffs' favor, only to the extent of directing defendants to produce certain discovery items within 90 days and granting plaintiffs a missing witness or evidence charge in the event defendants fail to do so, unanimously affirmed, without costs.

While defendants failed to respond to certain discovery requests and to comply with certain aspects of discovery orders, upon our review of the record, we agree with the motion court's conclusion that these failures were not wilful or contumacious or in bad faith and therefore did not warrant the drastic sanction of striking the answer or precluding defendants from offering evidence at trial (see Cespedes v. Mike & Jac Trucking Corp., 305 A.D.2d 222 [1st Dept 2003] ).  In response to plaintiffs' discovery demands, defendants produced, inter alia, photographs, reports, and correspondence prepared by both their employees and police officers who responded to the scene, maintenance and repair records and employee logs for 14 months preceding the accident, and 10 employees for depositions.

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DEPUTY CLERK