Plaintiff Menachem Mendel Ceitlin moves for an order striking the Amended Answer of defendant Oslyn R. Wood "on the grounds that said defendant has willfully and contumaciously failed to appear for a further examination before trial," or, in the alternative but on the same grounds, precluding Mr. Wood from testifying at trial. (See Notice of Motion dated July 27, 2007.) No penalty is sought against the other defendant, the City of New York.

On January 16, 2003, Plaintiff was attempting to cross Eastern Parkway near Albany Avenue, when he was struck by a truck owned by the City and driven by Mr. Wood, the City's employee. The Verified Complaint alleges that the truck "was being operated by with (sic) the knowledge and consent, express and/or implied" of the City, and "was being operated and controlled by" Mr. Wood "within the scope of and in furtherance of his employment with" the City. (See Verified Complaint dated May 6, 2003, ¶ ¶ 8, 10.) The Amended Answer of the City and Mr. Wood does not deny these allegations (see Amended Answer, undated), and, therefore, they are deemed admitted (see CPLR 3018 [a].)

A Preliminary Conference Order dated May 21, 2005 ordered the deposition of "[a]ll parties" on July 28, 2005. No depositions were held, however, and a compliance conference order dated November 1, 2005 ordered the deposition of Plaintiff and "City witness" on specified dates in January 2006. Plaintiff was deposed on January 10, and Oslyn Wood was deposed on January 11. At the time of his deposition, Mr. Wood was no longer employed by the City; he had resigned in December 2005. [*2]

During his deposition, Mr. Wood was instructed by his counsel (who is also counsel to the City) not to answer seven questions. The questions were marked for ruling by the court, and, by notice of motion dated June 30, 2006, Plaintiff moved for ruling by the court. In an order dated August 9, 2006 of the Hon. Martin M. Solomon, Mr. Wood was ordered to appear for a further examination before trial, to be held by September 15, and to answer six of the seven questions that were not answered on January 11.

Mr. Wood did not appear for a further examination before trial, and, by notice of motion dated October 17, 2006, Plaintiff moved for an order striking the Amended Answer. On the eventual return date, February 28, 2007, Defendants' counsel advised the Court that Mr. Wood could not be contacted, and that counsel intended to move to be relieved. Counsel was given until March 16 to so move, and Plaintiff's motion to strike was denied, with leave to renew after determination of Mr. Wood's counsel's motion to be relieved.

By Order to Show Cause dated March 7, 2007, Mr. Wood's counsel moved to be relieved on the grounds of Mr. Wood's alleged "failure to cooperate in the defense of this suit" and his "unavailability to assist in his defense." (See Affirmation in Support of Order to Show Cause to Be Relieved As Counsel, ¶ 8.) Mr. Wood did not appear on the motion; Plaintiff opposed.

In a Decision and Order dated July 3, 2007, this Court denied counsel's motion, with leave to renew after determination of any renewed motion by Plaintiff for a penalty for violation of the August 9, 2006 order (see CPLR 3126), which motion was required to be made within 30 days. (See Ceitlin v City of New York, 16 Misc 3d 887, ___ [Sup Ct, Kings County 2007].) This Court concluded, among other things, that, "[g]iven the conduct that resulted in Plaintiff's motion [to strike] and the August 9 order - - that is, counsel's violation of disclosure rules - - and the possible consequence for Mr. Wood, counsel's efforts to contact him were not sufficiently diligent." (See id., at ____.)

This motion followed. The Court notes that, although the Notice of Motion asks that Mr. Wood's answer be striken or that he be precluded from testifying at trial, the Attorney's Affirmation in Support states that "the plaintiff shall be prejudiced in the proof of his claim at the trial of this matter if he is not afforded the opportunity to further depose" Mr. Wood. (See Attorney's Affirmation, ¶ 13.)

"To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct." (Maignan v Nahar, 37 AD3d 557, 557 [2d Dept 2007].) "Striking a defendant's answer is a drastic remedy and is inappropriate when the contumacious behavior or noncompliance is attributable to defendant's counsel rather than to the defendant." (Lowitt v Burton I. Korelitz, M.D., P.C., 152 AD2d 506, 507-08 [1st Dept 1989].)

There is substantial authority in the Second Department that "[t]he fact that defendant has disappeared or made himself unavailable provides no basis for denying a motion to strike his answer, particularly in the face of continued defaults in appearance for examination before trial." [*3](See Foti v Suero, 97 AD2d 748, 748 [2d Dept 1983]; see also Maignan v Nahar, 37 AD3d at 557; Bates v Baez, 229 AD2d 382, 382 [2d Dept 2002]; Pierre v Delish Bakery & Restaurant, Inc., 294 AD2d 417, 418 [2d Dept 2002]; Valentino v Romero, 255 AD2d 505, 505-06 [2d Dept 1998]; Cavallino v Sonsky, 251 AD2d 361, 362 [2d Dept 1998]; Rowe v Lee Gee Sook, 224 AD2d 404, 405 [2d Dept 1996]; Spataro v Ervin, 186 AD2d 793, 794 [2d Dept 1992]; Amico v Pepe, 172 AD2d 575, 576 [2d Dept 1991].)

The First Department has held that, "[a]lthough a client has an obligation to remain in communication with his attorney, defendant's failure to communicate is not by itself a sufficient ground upon which to strike his answer." (Blake v Mamadou, 281 AD2d 301, 301 [1st Dept 2001]; see also Heyward v Benyarko, 82 AD2d 751, 751 [1st Dept 1981].) But the First Department will uphold a striking of a defendant's answer for repeated failure to appear for deposition, at least in the absence of evidence that the defendant's counsel has made a diligent and good faith effort to find the defendant. (See Wong v Yuet Ha Lo, 17 AD3d 128, 129 [1st Dept 2005]; Reidel v Ryder TRS, Inc., 13 AD3d 170, 171-72 [1st Dept 2004]; Flores v Bueno, 246 AD2d 466, 466-67 [1st Dept 1998]; Seamon v Apel, 191 AD2d 406, 406-07 [1st Dept 1993]; Montgomery v Colorado, 179 AD2d 401, 402 [1st Dept 1992]; see also Robinson v Rollins Leasing Corp., 288 AD2d 367, 367-68 [2d Dept 2001].)

"In the absence of evidence that the defendant . . . willfully and contumaciously failed to appear for an examination before trial, . . . [t]he appropriate remedy [is] to preclude [the defendant] from offering any testimony at trial unless [the defendant] is deposed before the trial" (see Patel v DeLeon, 2007 NY Slip Op 6423, * 2 [2d Dept]; see also Williams v Ryder TRS, Inc., 29 AD3d 784, 785 [2d Dept 2006]; Baez v Arrow Linen Supply Co., Inc., 10 AD3d 408, 408 [2d Dept 2004]; Viteritti v Gelfand, 289 AD2d 566, 567 [2d Dept 2001].) Here again, the First Department appears to require evidence of defense counsel's diligent and good faith efforts to find the defendant. (See Campbell v Peele, 289 AD2d 141, 142 [1st Dept 2001]; Crawford v Toyota Motor Credit Corp., 283 AD2d 184, 184 [1st Dept 2001]; see also Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370 [2d Dept 2000].)

In addition to the circumstances of the defendant's noncompliance, particularly the number of knowing failures to comply, and the efforts made by the defendant's counsel to locate the defendant, the court must also weigh the consequence of a drastic remedy for a co-defendant that is "not in default of any of its own disclosure obligations." (See McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256-57 [1st Dept 2005].) Error has been found in striking a defendant's answer when the "adverse impact . . . would fall most heavily" on a co-defendant who would be vicariously liable with the noncomplying defendant. (See Magee v City of New York, 242 AD2d 239, 239-40 [1st Dept 1997]; see also Mermelstein v Kalker, 294 AD2d 413, 414 [2d Dept 2002]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-81 [2d Dept 2001]; Briley v Morriseau, 99 AD2d 524, 524 [2d Dept 1984]; compare Rocco v KCL Protective Services, Inc., 283 AD2d 317, 318 [1st Dept 2001].)

Where a co-defendant's rights need be protected, the Second Department has held that, rather than striking the noncomplying defendant's answer, "[a] more appropriate sanction is to [*4]preclude [the noncomplying defendant] from offering evidence on his own behalf at trial unless he appears for an examination before trial no later than 30 days prior to trial." (See Mermelstein v Kalker, 294 AD2d at 414; see also Solomon v Horie Karate Dojo, 283 AD2d at 481.) The First Department would agree when there has been a showing of good faith efforts to locate the noncomplying defendant (see Heyward v Benyarko, 88 AD2d at 751), but otherwise appears to consider the appropriate sanction to be a preclusion of the noncomplying defendant's testimony (see Mason v MTA New York City Transit, 38 AD3d 258, 258 [1st Dept 2007]; Magee v City of New York, 242 AD2d at 239; see also Carwell v Odle, 2004 NY Slip Op 50117 [U], * 3 [App Term, 1st Dept].)

It is important to note that none of the cited authorities address the situation presented here, where a defendant has appeared for examination before trial, represented by counsel also representing a vicariously liable co-defendant, but the defendant is ordered to reappear to answer questions that defense counsel directed not be answered. Unlike the situation where there is no examination of the defendant at all, and where prejudice to the plaintiff is easily presumed, any likely prejudice here must be assessed by reference to the particular questions left unanswered.

The August 9 order requires that Mr. Wood answer the following six questions:

1."And back in January of 03 were you living at the same address but in Apartment F 1?"

2."And why did you resign?"

3."What's your date of birth?"

4."Had you taken any defensive driving courses in the three-year period prior to January 03?"

5."Have you ever been convicted of any crimes?"

6."Were you subjected to any disciplinary action by the Parks Department as a result of this accident?"

The August 9 order also provides that "[a]ny follow up questions require motion by 9/15/06," which was the deadline for Mr. Woods to appear. The parties do not address this provision, and neither will the Court, except to note that no such motion was made.

Of the six questions, three (nos. 2, 4, and 6) are arguably designed to lead to admissible evidence of Mr. Wood's lack of care in the operation of the City's truck at the time and place of the accident; one (no. 5) is clearly directed to possible impeachment; and the remaining two (nos. 1 and 3) would provide information for general purposes of investigation.

Mr. Wood's counsel attempts to limit the prejudice to Plaintiff from Mr. Wood's failure to [*5]appear for further examination by purporting to provide hearsay responses on his behalf to three of the questions (nos. 2, 3 and 6), and contending that the answers to others (nos. 1 and 4) would have no probative significance. With respect to the question about criminal conviction (no. 5), the provision of Mr. Wood's date of birth (unsupported even as to source) is said to allow Plaintiff to do his own investigation. The short answer to counsel is that, particularly if Mr. Woods may testify at trial, Plaintiff is entitled to answers to these questions, and to have the answers from Mr. Wood.

The Court concludes, nonetheless, that Mr. Wood's failure to appear to respond to these questions does not warrant the striking of his Amended Answer. Although Mr. Wood failed to comply with prior disclosure orders, so did Plaintiff; indeed, after Mr. Wood's January 11, 2006 deposition, a compliance conference order, dated February 21, 2006, required Plaintiff to comply with prior orders. As to the August 9 order, Mr. Wood is unaware of it, and his failure to communicate with his counsel is not, in itself, sufficient to warrant striking his answer. Although his counsel's efforts to find him were not sufficiently diligent for purposes of allowing counsel to withdraw, those efforts were consistent with routine investigation. Given that Mr. Wood's counsel is also the City's counsel, and the role played by counsel in the events leading to the August 9 order and its aftermath, the Court is not highly concerned about the effect the penalty would have on the vicariously liable City, but it is a factor.

Very importantly, none of the six questions will yield any direct evidence of Mr. Wood's lack of care in the operation of the City's truck at the time and place of the accident, or that has been shown otherwise to be necessary to Plaintiff's prima facie case. Information for possible impeachment will be useful only if Mr. Wood testifies at trial, and may be otherwise available with the responses counsel has provided. (See Jean v City of New York, 29 AD3d 524, 525 [2d Dept 2006].)

It is clear to the Court, on the other hand, that Mr. Wood should not be permitted to testify unless he has appeared for further examination at a time sufficiently in advance of trial to be useful to Plaintiff. Indeed, counsel appears to concede this. (See Affirmation in Opposition to Plaintiff's Motion to Strike Oslyn R. Wood's Answer, ¶ 10.) The question becomes whether this Court's conditional order should require appearance by a date certain, or at time preceding trial by some specified period of time. The case law described above would support either approach.

The Court concludes that, under the circumstances of this case, a conditional order requiring Mr. Wood to appear by a date certain is the more appropriate. As a general matter, an order specifying a time period prior to trial does not assist either party to most effectively assess and prepare the case for trial or settlement, unless the time period is so long as to amount, in effect, to a date certain. Here, all other disclosure appears to have been completed, and Plaintiff has been ordered to file his note of issue. In this county, City cases are making their way to the trial assignment part within four months after the note of issue is filed. A deadline that allows counsel sufficient time to conduct an effective investigation (see Appendix A to Benefield v City of New York, 14 Misc 3d 603 [Sup Ct, Bronx County 2006]) would best accommodate the interests of the parties and the court. The Court notes that it does not appear that any attempt has been made to find Mr. Woods for almost a year. [*6]

In addition, the Court recognizes that Plaintiff has been required to make numerous court appearances in connection with its three motions related to Mr. Wood's failure to answer questions at his deposition, as well as Mr. Wood's counsel's motion to be relieved. It is appropriate that, if Defendants are to be given yet another opportunity to allow Mr. Woods to be properly deposed, some compensation be paid for those appearances. (See Heyward v Benyarko, 82 AD2d at 751; see also Figdor v City of New York, 33 AD3d 560 [1st Dept 2006].)

Plaintiff's motion is granted to the extent that: (a) within ten days after service of a copy of this order with notice of entry upon Mr. Wood through his counsel, Mr. Wood and his counsel shall pay Plaintiff's counsel $1,200.00; and (b) no later than November 30, 2007, Mr. Wood shall appear for further examination before trial, and answer the six questions subject to the August 9, 2006 order, as well as appropriate follow-up questions. Should there be less than full and timely compliance, Mr. Wood shall be precluded from testifying at trial.

This Court will not entertain a renewal motion by Mr. Wood's counsel to be relieved until after November 30, 2007. Plaintiff shall serve his note of issue no later than that date.

October 1, 2007___________________

Jack M. Battaglia

Justice, Supreme Court