Mohammed v. 919 Park Place Owners Corp.
Cases that cite this one
14 later published cases cite this decision.
- Green v. Kingdom Garage Corp. (Appellate Division of the Supreme Court of New York 2006)
- Nieves v. City of New York (Appellate Division of the Supreme Court of New York 2006)
- Jacobs v. Macy's East, Inc. (Appellate Division of the Supreme Court of New York 2005)
- Gwyn v. 575 Fifth Avenue Associates (Appellate Division of the Supreme Court of New York 2004)
- Riley v. ISS International Service System, Inc. (Appellate Division of the Supreme Court of New York 2003)
- Abbadessa v. Sprint (Appellate Division of the Supreme Court of New York 2002)
- Barth v. City of New York (Appellate Division of the Supreme Court of New York 2002)
- Decavallas v. Pappantoniou (Appellate Division of the Supreme Court of New York 2002)
- Garcia v. First Spanish Baptist Church of Islip (Appellate Division of the Supreme Court of New York 1999)
- Tillman v. Metropolitan Suburban Bus Authority (Appellate Division of the Supreme Court of New York 1999)
- Lozada v. Build On Top, HDFC (Appellate Division of the Supreme Court of New York 1999)
- Vogel v. Benwil Industries, Inc. (Appellate Division of the Supreme Court of New York 1999)
- Kimmel v. State (Appellate Division of the Supreme Court of New York 1999)
- Monaco v. Camie-Campbell, Inc. (Appellate Division of the Supreme Court of New York 1998)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
—In an action to recover damages for personal injuries, the defendants 919 Park Place Owners Corp. and Relimare/ Regal Management Service appeal from (1) an order of the Supreme Court, Kings County (Rappaport, J.), dated November 26, 1996, which conditionally granted the plaintiff’s motion to
Ordered that the order dated November 26,1996, is affirmed; and it is further,
Ordered that the appeal from so much of the order dated March 21, 1997, as denied reargument is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated March 21, 1997, is reversed insofar as reviewed, as a matter of discretion, that branch of the appellants’ motion which was for renewal is granted, and upon renewal, the plaintiffs motion to strike the appellants’ answer is denied, the appellants’ answer is reinstated, and the order dated November 26, 1996, is modified accordingly; and it is further,
Ordered that the appellants are awarded one bill of costs.
Whenever possible, actions should be resolved on the merits (see, Cruzatti v St. Mary’s Hosp., 193 AD2d 579). In addition, while the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the sound discretion of the Supreme Court, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see, CPLR 3126 [3]; Herrera v City of New York, 238 AD2d 475; Harris v City of New York, 211 AD2d 662, 663; Soto v City of Long Beach, 197 AD2d 615, 616).
In the case at bar, it has not been clearly demonstrated that the appellants’ failure to produce a knowledgeable witness for deposition was willful and contumacious. Rather, the appellants were not able to. produce such a witness because, inter alia, the witness in question was no longer in the appellants’ employ. It was therefore an improvident exercise of discretion for the Supreme Court to invoke the extreme and drastic penalty of striking the appellants’ answer (see, McIntosh v Flight Safety, 54 AD2d 559; see also, Di Mare v New York City Tr. Auth., 81 AD2d 574). Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.