Peters v. City of New York11/23/2004
rs, and killing Prescott. The force of the impact also caused the ambulance, which was blocking the crosswalk, to careen forward, striking Cowan, a pedestrian, as she was attempting to go around the ambulance in order to cross from the southwest corner of Eastern Parkway to the northwest corner. Church-Ford tested positive for alcohol intoxication and was arrested at the accident scene, and was, subsequently, found guilty of second degree manslaughter and driving under the influence, and was incarcerated.
Consequently, on April 11, 1995, Peters commenced action # 1 against the City, the NYCHHC, Ahmed, Church-Ford, and Karen Ford, seeking damages for the personal injuries sustained by him. On May 8, 1995, Cowan commenced action # 2 against the City, the NYCHHC, Ahmed, Peters, Church-Ford, and Karen Ford, seeking damages for the personal injuries sustained by her. Defendants have interposed answers in these two related actions, and the actions were consolidated for joint trial by order dated October 29, 2001.
Peters, Cowan, and Ahmed, by their respective motions and cross motions, assert that the City and the NYCHHC has failed to comply with certain court-ordered discovery, including the production of a videotape of Church-Ford which was made following his arrest and CAD reports for CAD numbers 0170 and 0176 for the subject accident. They argue that sanctions, pursuant to CPLR 3126, such as the striking of the answer of the City and the NYCHHC or the preclusion of evidence as to the matters that are the subject of the discovery demands, should be imposed by this court.
It is well established, however, that the extreme and drastic sanction of striking a party's pleading for failure to comply with discovery is unwarranted absent a clear showing by the moving parties that the failure to comply was willful, contumacious, or in bad faith (Byrne v City of New York, 301 AD2d 489, 490 ; Foncette v LA Express, 295 AD2d 471, 472 ; Fellin v Sahgal, 268 AD2d 456, 456 ; Nabozny v Cappelletti, 267 AD2d 623, 625 ; Kaplan v Emmett, 265 AD2d 307, 307 ; Harris v City of New York, 211 AD2d 663, 664 ; Lestingi v City of New York, 209 AD2d 384, 385 ; Jeffcoat v Andrade, 205 AD2d 374, 374 ). In furtherance of the policy of resolving actions on the merits, whenever possible, litigants who have not replied expeditiously with discovery should be afforded reasonable latitude before imposition of the extreme and harsh penalty of the striking of an answer (Byrne, 301 AD2d at 490; Cigna Prop. & Cas. Co. v Decoration & Design Bldg. Partnership, 268 AD2d 223, 224 ; New v Scores Entertainment, 255 AD2d 108, 108 ; Bassett v Bendo Sangsa Co., 103 AD2d 728, 728 ).
Here, there is no clear showing that the failure of the City and the NYCHHC to comply with discovery orders was willful, contumacious, or in bad faith. The City and the NYCHHC have already produced three deposition witnesses, the New York City Police Department accident investigation squad file, and 35 photographs of the accident location. The City and the NYCHHC have also made some effort to comply with the outstanding discovery requests by providing a partial response to the court order dated August 5, 2003. The City and the NYCHHC have stated that they have encountered some difficulty in obtaining the requested videotape of Church-Ford and have not, to date, located the CAD reports, but plan to renew their search, and request additional time to do so. Furthermore, where, as here, the discovery demanded is potentially exculpatory, it cannot be said that any default is willful, contumacious, or in bad faith (see Ahroni v City of New York, 175 AD2d 789, 789-790 ).
Thus, an order striking the answer of the City and
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