Statement Pursuant to CPLR § 2219

The following papers numbered via NYSCEF, to wit (NYSCEF Docs.) Nos. 30-53, were read on this motion. This is a final Decision and Order on Motion Sequence #002.

This personal injury action arises from a motor vehicle collision that occurred on February 6, 2023, at approximately 8:45 a.m. on the northbound lane of the West Shore Expressway near Victory Boulevard, in the County of Richmond. At the time of the incident, plaintiff Diana Leon was operating a 2022 Honda automobile bearing New York registration KSF8360 when her vehicle was allegedly struck by a 2016 Mack truck bearing registration 30049NA, owned by Island Redi Mix Inc. and operated by its employee, Tahiem Smith. Plaintiff alleges to have sustained serious and permanent injuries as defined under Insurance Law § 5102(d).

Plaintiff commenced this action on or about March 29, 2023. Defendant Island Redi Mix Inc. was served on April 4, 2023; Defendant Smith was served on July 14, 2023. Defendants filed a Verified Answer on August 24, 2023. Plaintiff subsequently served a Verified Bill of Particulars dated October 6, 2023.

The parties appeared for a Preliminary Conference on October 30, 2023, which resulted in an Order directing completion of EBTs within sixty (60) days. Plaintiff complied and appeared for her deposition on June 19, 2024. However, despite repeated directives, defendants have wholly failed to appear for deposition. The record reflects three subsequent Compliance Conference Orders—dated June 20, September 4, and October 8, 2024—all of which reiterated the defendants' obligation to submit to EBTs within defined deadlines. Each such Order was blatantly disregarded. As of the filing of this motion on October 30, 2024, no appearance for deposition has occurred, nor has defense counsel offered any justification, explanation, or proposed alternate scheduling.

CPLR § 3126 authorizes the Court to impose sanctions, including striking a party's pleadings, where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The discretionary power to sanction recalcitrant litigants under CPLR § 3126 is rooted in the judiciary's inherent authority to supervise and enforce compliance with discovery obligations and to maintain the integrity of the adjudicative process.

New York courts have consistently held that striking a party's pleadings is an appropriate remedy when a party's noncompliance is not merely negligent, but "willful and contumacious." (Rodriguez v All American Auto Rental, 179 AD2d 632 [2d Dept 1992]; Reitte v Entermy Cab Corp., 162 AD2d 259 [1st Dept 1990]). Willfulness may be inferred from a party's repeated failures to comply with discovery orders coupled with the absence of any reasonable excuse (Seamon v Apel, 191 AD2d 406 [1st Dept 1993]; Mills v Ducille, 170 AD2d 657 [2d Dept 1991]).

The procedural history in this case demonstrates a pattern of deliberate defiance by the defendants and/or their counsel. Not only did defendants fail to appear for their EBTs, but they also violated four successive Court Orders—the Preliminary Conference Order and three subsequent Compliance Conference Orders. Each Order afforded defendants ample opportunity to comply. The most recent Order, dated October 8, 2024, explicitly directed defendants to appear within thirty (30) days. That directive was ignored without explanation or effort to [*2]reschedule

This Court finds the defendants' conduct to be more than negligent or inadvertent—it reflects a willful, contumacious, and unjustifiable disregard of judicial authority and the discovery process. There is no affidavit from defendants' counsel attempting to excuse or justify the noncompliance. The record is devoid of any mitigating facts.

The plaintiff has a statutory and constitutional right to prosecute her claims with the benefit of complete discovery. The EBTs of defendants are central to the issues of liability, potential comparative negligence, and damages. Plaintiff is prejudiced not merely by delay, but by the inability to conduct meaningful examination of defendants' version of events, operational practices, and potential admissions. The purpose of disclosure procedures is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits. The failure of defendants to submit to deposition obstructs the truth-seeking function of the trial and undermines the fair administration of justice (Rios v Donovan, 21 AD2d 409, 411 [1st Dept 1964]).

In light of the defendants' continued, unexcused, and flagrant violation of discovery orders, and upon consideration of the legal precedent and procedural posture of this matter, it is hereby:

ORDERED, that the motion by Plaintiff Diana Leon is GRANTED to the extent that defendants Island Redi Mix Inc. and Tahiem Smith's Verified Answer dated August 24, 2023, is deemed stricken, and without further application to this Court, the matter is set down for an inquest on damages on May 6, 2025 at 2:15PM; and it is further;

ORDERED, that Plaintiff is directed to serve a copy of this Decision and Order with Notice of Entry upon defendants within five (5) days of its entry.

The clerk of the court shall enter judgment accordingly. This constitutes the final Decision and Order of the court.