Rodriguez v United Bronx Parents, Inc., 2010 NY Slip Op 01366 (1st Dept. 2010):
“Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered August 26, 2009, which, to the extent appealed from, granted plaintiff’s cross motion pursuant to CPLR 3126 to strike defendant’s answer solely to the extent of granting plaintiff a missing witness charge as to Nadia James and Victor Martinez, unanimously modified, on the law and the facts, the cross motion to strike granted….”
“Here, plaintiff established that defendant’s failure to comply was willful and contumacious, given its repeated and persistent failure to comply with five successive disclosure orders (see Goldstein v CIBC World Mkts. Corp. 30 AD3d 217 [2006]; Min Yoon v Costello, 29 AD3d 407 [2006]; compare Pascarelli v City of New York, 16 AD3d 472 [2005]). Defendant’s failure to adequately explain what efforts were made to locate the documents it failed to disclose, or to explain its inability to provide the last known addresses of its former residents or employees, also supports a finding that its failure to comply was willful. Furthermore, defense counsel’s “Affirmation of Search” did not indicate whether he was the custodian of defendant’s records, what records were searched, who conducted the search, what the search consisted of, and the statement was made upon “information and belief.” Accordingly, this statement is devoid of detail and insufficient.”
After the fifth time that defendant stonewalled the plaintiff, the Supreme Court granted plaintiff a missing witness charge. The Appellate Division was unimpressed and, upon Defendant’s appeal, struck the Defendant’s complaint.
