Amirov v. Turtle Bay Tavern Corp.

Summary

The Appellate Division, First Department reversed an order striking defendants' answer under CPLR 3126 and reinstated the answer. The court held that defendants' failure to produce a witness with knowledge of an alleged assault and related security and alcohol-service policies was not shown to be willful, contumacious, or in bad faith, particularly because the business had closed and former employees were no longer under defendants' control. The court stated that any additional witnesses later produced would first need to be made available for pretrial depositions and could be subject to preclusion orders.

Holdings

1. Supreme Court improvidently exercised its discretion by striking defendants' answer because the record did not establish that defendants' failure to produce the requested witness was willful, contumacious, or in bad faith.
2. If defendants later obtain control over additional witnesses and produce them at trial, they may not do so without first allowing plaintiffs to complete pretrial depositions of those witnesses, and the trial court may impose appropriate preclusionary orders.

Questions Presented

1. Whether Supreme Court properly exercised its discretion by striking defendants' answer under CPLR 3126 for failing to produce a witness with knowledge of the alleged assault and defendants' internal policies and procedures.
2. Whether defendants' discovery conduct was willful, contumacious, or in bad faith so as to warrant the severe sanction of striking the answer.
3. What conditions may govern the later production of additional witnesses if defendants obtain control over them.

Disposition

reversed