Lehr v. City of New York

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about October 1, 1991, which denied plaintiffs motion to strike defendant Transit Authority’s answer for failure to produce a knowledgable witness for examination, unanimously affirmed, without costs.

This is a negligence action in which plaintiff alleges defendant negligently failed to maintain the sidewalk in front of the Bank of New York, located on 48 Wall Street. Plaintiff alleges that defendant consistently defied several court orders to produce a knowledgeable witness with respect to the sidewalk grating in question. Although we do not condone defendant’s partial compliance, we cannot characterize defendant’s conduct as willful, evasive or contumacious (see, Fucci v Fucci, 166 AD2d 551 ; Sawh v Bridges, 120 AD2d 74 ).

Since plaintiff failed to satisfy his burden of showing that the defendant’s default was deliberate, he is not entitled to the drastic remedy of dismissal of the complaint. Concur— Sullivan, J. P., Milonas, Ellerin and Wallach, JJ.