Plaintiffs appeal from an order of the Civil Court of the City of New York, Bronx County, entered August 7, 2003 (Howard H. Sherman, J.) which denied their motion to strike the answer of defendants Lease Line, Inc. and Western Beef, Inc. and granted said defendants' cross motion for summary judgment dismissing the complaint as against them.

PER CURIAM:

Order entered August 7, 2003 (Howard H. Sherman, J.) affirmed, with $10 costs.

This negligence action arises from a three-car collision. Plaintiffs were traveling through the intersection of Bergen Avenue and East 149th Street in the Bronx when the vehicle driven by defendant Lopez, while making a left turn from the opposite direction, struck the driver's side of plaintiffs' vehicle, causing it to strike a parked tractor-trailer owned or operated by defendants-respondents Lease Line/Western Beef. Even assuming that the tractor-trailer was parked illegally, the record is devoid of evidentiary facts to establish that any such parking violation was a proximate cause of the accident (see Dormena v Wallace, 282 AD2d 425 [2001]; Gleason v Reynolds Leasing Corp., 227 AD2d 375 [1996], lv denied 89 NY2d 802 [1996]; see also Singh v Kolcaj Realty Corp., 283 AD2d 350 [2001]).

As to plaintiff's motion to strike defendants-respondents' answer, defendants' failure to produce the driver of the allegedly illegally parked vehicle, no longer in their employ, was not shown to be either wilful or contumacious. Through the use of a private investigator, defendants were able to locate this witness, but their efforts to produce him for deposition were met with hostility, and plaintiffs were appropriately advised (see Thomas v McGuire Serv. Corp., 251 AD2d 148 [1998]).

This constitutes the decision and order of the Court. [*2]
Decision Date: September 22, 2005