Silva v. Alexander's Department Stores, Inc. — 37 A.D.2d 829

Majority

p. 829

Jose A. Silva, Respondent, v. Alexander’s Department Stores, Inc., et al., Appellants.

Order, Supreme Court, Bronx County, entered April 1, 1971, denying defendants’ motion for an order vacating previous order striking portions of answer, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs and without disbursements, the motion granted and the order entered on October 26, 1970, vacated upon payment by defendants of $250 additional costs. Although defendant Alexander’s Department Stores, Inc., has not co-operated to the extent it could have, particularly in its failure to produce Mr. Riley, the head of its security operations, striking its answer was the extremest penalty, and excessive for the deficiency involved. Particularly, in view of the alternative provision of the order directing Riley’s

p. 830

appearance and the alternative witnesses produced, including Mrs. Florence Jack. Accordingly, we permit the answer to remain intact, but in view of the defendant Alexander’s obstruction of a disclosure, to which plaintiff was entitled, the sanction of $250, as an additional cost, is imposed. ‘Concur—Stevens, P. J., Capozzoli, MeGivern, Steuer and Tilzer, JJ.