Devlin v. Desamours , 144 A.D.3d 548 ( 2016 )

Devlin v Desamours (2016 NY Slip Op 07841)

Devlin v Desamours

2016 NY Slip Op 07841

Decided on November 22, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.

2242N 158432/13

[*1] Thomas F. Devlin, Plaintiff-Appellant,

v

Raymond Desamours, Defendant-Respondent, Chester Cab Corp., et al., Defendants.

Oshman & Mirisola, LLP, New York (David L. Kremen of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about March 4, 2016, which denied plaintiff's motion to strike the answer of defendant Raymond Desamours, and ordered him to appear for deposition within 30 days or be precluded from testifying, unanimously affirmed, without costs.

It is within the trial court's discretion to determine the appropriate penalty for noncompliance with discovery orders, "and the sanction will remain undisturbed unless there has been a clear abuse of discretion" (Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). The record on appeal does not indicate a clear abuse of discretion.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2016

CLERK