Bernal v Singh, 2010 NY Slip Op 03053 (2d Dept. 2010)
“It is settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (see CPLR 3126[3]; Joseph v Iannace, 6 AD3d 502, 503; Ordonez v Guerra, 295 AD2d 325, 326; Yona v Beth Israel Med. Ctr., 285 AD2d 460, 461). The record herein supports the Supreme Court’s determination that the defendants’ failure to appear for depositions on June 5, 2009, was willful and contumacious (see Beneficial Mortg. Corp. v Lawrence, 5 AD3d 339, 340; Rowell v Joyce, 10 AD3d 601). The attorneys for both sides had agreed upon that date at a compliance conference on June 1, 2009, just four days earlier, and the resulting compliance conference order had directed the depositions to proceed on that date starting at 10:00 A.M. in the courthouse.”
I am not sure how many previous orders were violated, but the extreme penalty of putting a defendant in default under the circumstances as presented in this opinion seems quite drastic.
