New York Supreme Court Appellate Division, First Department
March 12, 2013
ROCK J. WALKER, PLAINTIFF-APPELLANT,
SCOTT FOREMAN, ETC., DEFENDANT-RESPONDENT.
Walker v Foreman
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 12, 2013 Sweeny, J.P., Moskowitz, Abdus-Salaam, Roman, Feinman, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered May 6, 2011, which granted defendant's motion to strike plaintiff's pleadings, unanimously affirmed, without costs. Judgment, same court and Justice, entered July 14, 2011, awarding defendant damages in the amount of $116,530, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new inquest on damages.
The court providently exercised its discretion in striking plaintiff's pleadings, given plaintiff's intentional and unexcused failure to comply with more than three orders, some of them stipulated to by plaintiff, to produce documents relevant to the case (CPLR 3126; Oasis Sportswear, Inc. v Rego, 95 AD3d 592 [1st Dept 2012]). However, as an appearing party whose pleadings were stricken, plaintiff was entitled to five days notice of the inquest (CPLR 3215[g]; Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 ). The failure to give such notice requires a new inquest, on proper notice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 12, 2013
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