Vega v. City of New York , 687 N.Y.S.2d 898 ( 1999 )

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered March 12, 1998, which, in an action for false arrest and assault allegedly committed by defendant City’s police officers, granted plaintiffs’ motion to strike defendant’s answer for failure to comply with its disclosure obligations, and denied defendant’s cross-motion for an extension of time to comply with its disclosure obligations, unanimously reversed, on the law, without costs, plaintiffs’ motion denied, defendants’ answer reinstated and the cross-motion granted.

The unfortunate sudden death of the young law student who assisted in the day-to-day handling of this case for the City resulted in a great deal of confusion over the status of his cases. That confusion accounted for the failure of the City to produce the requested documents five days prior to the deposition scheduled for January 12, 1998, as directed by the court. The City has therefore offered a reasonable excuse for its failure to comply with the prior order of the Supreme Court. Additionally, the failure to comply was neither willful nor contumacious.

Accordingly, the penalty of striking the City’s answer is too severe and the City should have been given a brief additional period of time in which to comply with the discovery order. Concur — Rosenberger, J. P., Williams, Andrias, Saxe and Buckley, JJ.