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Washington v. City of New York

Other Lower Courts

January 3, 2008

Troy Washington, Plaintiff(s),
v.
The City of New York, and The New York City Department of Corrections, Defendants'(s).

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Plaintiff: Law Offices of Brad A. Kauffman, P.C.

Defendant: Michael A. Cardozo.

OPINION

Paul A. Victor, J.

RELIEF REQUESTED

The plaintiff moves to strike the answer of the defendants for failing to comply with discovery obligations and with a conditional order of this court dated April 26, 2007.

ISSUES PRESENTED

Does plaintiff, by the filing of a Note of Issue, waive any prior failure by defendant to comply with a conditional order? Should plaintiff be precluded from making a motion to make "absolute" the striking of an answer because of the prior filing of a Note of Issue ?

BACKGROUND

The procedural history and background of this case is outlined in this court's decision and order issued on April 26, 2007; and the court hereby incorporates that history by reference.

In that decision, because of the defendants egregious delay and failure to comply with its discovery obligations, the court ordered the defendants to fully comply within 30 days, with all previous discovery demands and court orders, and to pay a monetary penalty to the plaintiff in the sum of $1000, or have its answer stricken. Despite service of the order with notice of entry on May 21, 2007, defendants did nothing. Upon expiration of 30 days from service of the order, the plaintiff filed a note of issue on June 25, 2007, and in a statement of readiness indicated in essence that no further discovery was necessary ; and then expeditiously moved by motion dated July 27, 2007 (returnable August 22, 2007) to make absolute the conditional striking of the answer.

On August 20, 2007 [ two days before the return date] the defendants, in an effort to avoid the consequences of the failure to comply with the order, forwarded ...


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