Adair v. City of New York

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about May 10, 2000, which denied plaintiffs’ motion to strike defendant’s answer, unanimously modified, on the law, the facts and in the exercise of discretion, to preclude defendant from contesting the issue of notice, and otherwise affirmed, without costs.

Defendant’s apparent destruction of the necessary documentary evidence relevant to the issue of whether defendant City had notice of the roadway defect was not willful, contumacious or undertaken in bad faith. We agree with the motion court that defendant’s consequential failure to comply with discovery directives, therefore, does not warrant the severe sanction of striking the answer (Frye v City of New York, 228 AD2d 182; Dauria v City of New York, 127 AD2d 459; cf, Rosenfeld v Bower & Gardner, 161 AD2d 374). Although at the late date at which the defendant City was finally forthcoming, it could not be ascertained if and when the relevant records existed, the City must be accountable for that lengthy delay and the likelihood that relevant records were routinely culled and destroyed in the interim, notwithstanding the imminence of this action. We note that plaintiffs necessarily rely on such records in the City’s exclusive possession in order to establish the requisite notice, and have been deprived of such during the period of delay. Accordingly, we direct that the City be precluded from contesting the issue of notice. Concur — Williams, J.P., Tom, Rosenberger, Ellerin and Buckley, JJ.