Defendant’s Failure to Appear at Pre-Trial Conference Did Not Warrant Striking Answer

The Third Department reversed Supreme Court’s striking of defendant’s answer as a penalty for defendant’s not appearing at a pre-trial conference as ordered:

Generally speaking, and based upon sound underlying policy, there is a strong judicial preference for determination of issues upon the merits ….  Consistent with this policy, defendant’s failure to comply with the court’s directive for in-person appearance at a pretrial conference is not punishable by an order striking the pleadings. The applicable rule instead specifically authorizes the court only to deem a party’s failure to comply  “a default under  CPLR  3404,” which  results in removal  of the case from  the trial calendar (22 NYCRR 202.26 [e]…).  CBA Properties LLC v Global Airlines Services Inc, 515868, 3rd Dept 7-18-13