Monday, August 1, 2016

A failed motion to strike an answer.

Practice point:  The Appellate Division reversed the Supreme Court, finding that plaintiff's motion to strike defendant's answer and for summary judgment on its complaint should have been denied. Striking a party's pleadings is a drastic sanction that requires a clear showing that the party's conduct was willful and contumacious, and plaintiff failed to make this showing. Instead, the record makes clear that the facts surrounding defendant's failure to appear for deposition are in dispute. Defendant submitted affidavits stating that plaintiff had affirmatively agreed to postpone depositions while the parties tried to discern, among other things, who had signed which agreements. The Appellate Division said that, under these circumstances, there must be a hearing to determine whether defendant's failure to attend the deposition was willful and contumacious,

Student note:  The Appellate Division noted that, in New York, there is a strong preference for deciding matters on the merits.

Case:  CEMD El. Corp. v. Metrotech LLC I, NY Slip Op 05542 (1st Dep't July 14, 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a motor vehicle accident claim.