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Vieda v. Otro Rollo Tropical, Inc.

Supreme Court of New York, Second Department

July 24, 2013

Michael Vieda, respondent,
v.
Otro Rollo Tropical, Inc., et al., appellants. (Index No. 15968/10)

Havkins, Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Steven H. Rosenfeld and Dimitrios Kourouklis of counsel), for appellants.

Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Agate, J.), dated November 26, 2012, which granted the plaintiff's motion pursuant to CPLR 3126 to strike their answer.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of the defendants NRP LLC II and Emmes Asset Management Company, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The record reveals that the representative of the defendant Otro Rollo Tropical, Inc. (hereinafter Otro), willfully and contumaciously refused to appear for his deposition (see Carabello v Luna, 49 A.D.3d 679, 680; Duncan v Hebb, 47 A.D.3d 871; Maignan v Nahar, 37 A.D.3d 557). Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Otro (see CPLR 3126[3]; cf. Mermelstein v Kalker, 294 A.D.2d 413, 414). However, because there was no showing of willful and contumacious conduct on the part of the defendants NRP LLC II and Emmes Asset Management Company, LLC, and no showing that those defendants exercised control over Otro, they should not be precluded from defending the action (see Carabello v Luna, 49 A.D.3d at 680; Mills v Ducille, 170 A.D.2d 657; Moriates v Powertest Petroleum Co., 114 A.D.2d 888, 890). Accordingly, that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of NRP LLC II and Emmes Asset Management Company, LLC, should have been denied.

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.


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