Garcia v City of New York, 2011 NY Slip Op 00629 [81 AD3d 440]

February 3, 2011

Appellate Division, First Department

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Michael A. Cervini, P.C., Jackson Heights (Robin Mary Heaney of counsel), for appellant. Jeffrey M. Schwartz, New Rochelle, for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 24, 2009, which granted plaintiff’s motion pursuant to CPLR 3126 to strike the answers of defendants City of New York, 1515 Bruckner Blvd. LLC, Citywide Contractors LLC and Kaila Construction Corporation unless they appear for their respective examinations before trial within 60 days of service of a copy of the order, unanimously affirmed, without costs.

Defendants failed to comply with a preliminary conference order and two compliance conference orders issued over a period of 14 months to produce witnesses for examinations before trial. However, given counsel’s failure to file an affirmation in compliance with 22 NYCRR 202.7 (a) (2), it was a provident exercise of discretion to provide defendants with a final opportunity to produce witnesses for examinations before trial ( see Reidel v Ryder TRS, Inc. , 13 AD3d 170 [2004]). Concur—Saxe, J.P., Friedman, Catterson, Acosta and Richter, JJ.