The Rogak Report: 05 Sept 2012: Depositions - Default
- DEFENDANT'S BELATED ATTEMPT TO "APPEAR" FOR EBT BY TELEPHONE FAILS
Allstate Ins. Co. v Rasoul 2012 NY Slip Op 51679(U) Decided on August 30, 2012 Appellate Term, First Department Edited by Lawrence N. Rogak
Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered July 23, 2008, which granted plaintiff's motion to strike the answer pursuant to CPLR 3126, (2) an order (same court and Judge), entered August 6, 2008, which denied, as moot, defendant's motion for summary judgment dismissing the complaint, and (3) a judgment (same court and Judge), entered May 19, 2009, after an inquest, in favor of plaintiff and awarding it damages in the principal sum of $8,245.08. Affirmed.
Defendant's demonstrated failure to comply with three separate court orders directing him to appear for deposition gave rise to an inference of willful and contumacious conduct (see Mei Yun Zhang v Santana, 52 AD3d 484 ; Duncan v Hebb, 47 AD3d 871 ). In the absence of a reasonable excuse for defendant's prolonged disobedience, the striking of his answer was a proper exercise of discretion (see Figiel v Met Food, 48 AD3d 330 ).
We also reject defendant's claim that he appeared at the deposition. His attempt to appear and submit to deposition by telephone was ineffective and therefore properly rejected, since there was neither a stipulation between the parties (see CPLR 3113[d]) nor a court order authorizing this procedure (see Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3113:8)