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Holloway v. Station Bar Corp.

Supreme Court of New York, Second Department

December 18, 2013

Kyana Holloway, appellant,
v.
Station Bar Corp., etc., respondent. Index No. 12036/10

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas Hurzeler of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated November 27, 2012, as granted that branch of her motion which was pursuant to CPLR 3126 only to the extent of precluding the defendant from offering any testimony at trial from two of its employees named "Juan" and "Jose."

ORDERED that the order is affirmed insofar as appealed from, with costs.

As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, " a court may issue an order, inter alia, "prohibiting the disobedient party... from producing in evidence designated things or items of testimony" or "striking out pleadings" (CPLR 3126[2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Facey v Silver Express Cab Corp., 87 A.D.3d 1053; Patel v DeLeon, 43 A.D.3d 432, 433; Williams v Ryder TRS, Inc., 29 A.D.3d 784, 785). Here, the record does not support a finding that the defendant willfully and contumaciously failed to produce for depositions two of its former employees identified only as "Juan" and "Jose." Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 only to the extent of precluding the defendant from calling "Juan" and "Jose" as witnesses at trial (see Viteritti v Gelfand, 289 A.D.2d 566, 567).

The plaintiff's remaining contention is without merit.

SKELOS, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.


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