You are here: / / ALTHOUGH PLAINTIFF’S REPEATED FAILURE TO APPEAR FOR THE CONTINUATION...
,

ALTHOUGH PLAINTIFF’S REPEATED FAILURE TO APPEAR FOR THE CONTINUATION OF HER DEPOSITION WAS WILLFUL, STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined striking the complaint was too severe a sanction for plaintiff’s repeated failure to appear for the continuation of her deposition:

… [T]he plaintiff’s repeated failure to appear for her continued deposition, coupled with her failure to demonstrate a reasonable excuse for that failure, supports an inference that her conduct was willful … . The plaintiff proffered the health condition of her attorney as an excuse for failing to appear for the continued deposition. However, the plaintiff’s attorney did not submit medical evidence or sufficient documentary facts to support the claim, or explain why his per diem attorney was unable to attend the deposition … .

Even so, given that the plaintiff had complied with disclosure except for completing the continued deposition relating to newly alleged injuries, we find that the striking of the complaint was too drastic a remedy.

Accordingly, we modify the order appealed from by deleting the provision thereof granting the defendant’s motion, in effect, pursuant to CPLR 3126(3) to strike the complaint, and substitute therefor a provision granting the defendant’s motion only to the extent of precluding the plaintiff from offering evidence at trial with respect to any of the new injuries alleged in the plaintiff’s supplemental verified bill of particulars … . Turiano v Schwaber, 2020 NY Slip Op 01200, Second Dept 2-19-20

 

You might also like
Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial
FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S MOTION FOR A UNIFIED TRIAL (LIABILITY AND DAMAGES) IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE NATURE OF THE INJURIES WAS RELEVANT TO HOW THE ACCIDENT OCCURRED (SECOND DEPT).
IN A COMPLEX MARITAL-PROPERTY, MAINTENANCE AND CHILD-SUPPORT ANALYSIS TOO DETAILED AND COMPREHENSIVE TO SUMMARIZE HERE, THE COURT NOTED THAT, ABSENT A VOLUNTARY AGREEMENT, A PARENT MAY NOT BE DIRECTED TO SUPPORT A CHILD AFTER THE AGE OF 21 (SECOND DEPT).
Employment Contract Deemed Hiring “At Will”—No Fixed Duration
WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).
THE MEDICAL RECORDS DID NOT PROVIDE NOTICE TO THE HOSPITAL OF A POTENTIAL MEDICAL MALPRACTICE ACTION AND PETITIONER FAILED TO SHOW THE HOSPITAL WOULD NOT BE PREJUDICED BY THE DELAY IN SERVING A NOTICE OF CLAIM; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
THE OWNER OF THE DEFECTIVE LADDER WHICH CAUSED PLAINTIFF’S INJURY ALLEGED THE LADDER WAS PURCHASED AT A PARTICULAR HOME DEPOT STORE, IN THE FACE OF PROOF THE STORE DID NOT OPEN UNTIL YEARS AFTER THE ALLEGED PURCHASE, THE OWNER OF THE LADDER ALLEGED THE LADDER WAS EITHER PURCHASED AT A DIFFERENT TIME OR AT A DIFFERENT HOME DEPOT STORE, HOME DEPOT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROOF OF THE VALUE OF THE STOLEN ITEMS WAS INSUFFICIENT; GRAND LARCENY 3RD DEGREE... NOTICE REQUIREMENTS OF RPAPL 1304 NOT PROVEN; PLAINTIFF BANK’S MOTION...