Besson v. Beirne ( 1992 )

Order, Supreme Court, New York County (Charles Ramos, J.), entered August 28, 1991, which granted motions by plaintiff and co-defendant Todini to strike defendant-appellant Beirne’s pleadings unless he appeared for deposition within 60 days of service of the order, unanimously affirmed, with costs.

The defendant, Joseph Beirne, was driving a vehicle rented from The Hertz Corporation. He allegedly ran a red light and struck co-defendant Todini’s car, causing serious injury to the passenger-plaintiff, Anouk Besson. Beirne was charged with a misdemeanor for leaving the scene of an accident.

A deposition of Beirne was scheduled and a conditional order was entered to strike Beirne’s answer and his cross-claim against co-defendant Todini, unless he appeared for a deposition within 60 days.

It is contended by Beirne’s attorney, who has not been able to be in touch with him, that it was an abuse of discretion to strike his answer because of his failure to appear for the deposition, inasmuch as it was contended that the failure to appear was not willful.

When a discovery order is disobeyed, the court, in its discretion, may strike relevant pleadings (Grabow v Blue Eyes, 123 AD2d 155).

The disappearance of a defendant is no bar to striking an answer (Reitte v Entermy Cab Corp., 162 AD2d 259).

There is obviously a failure to cooperate with counsel. Concur — Sullivan, J. P., Carro, Milonas and Kupferman, JJ.