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HECTOR PEREZ, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY et al., Respondents.

The drastic sanction of striking a pleading is inappropriate without a showing that failure to comply with disclosure obligations was wilful, contumacious or in bad faith ( Cespedes v Mike Jac Trucking Corp., 305 AD2d 222). While defendants did not timely comply with the court-ordered deadlines, there has been no clear showing that such failure was so motivated. Morever, plaintiff has failed to demonstrate how he is prejudiced by the absence of the destroyed documents. However, in our view, and as defendants themselves acknowledge, the monetary sanction imposed for defendants' delay was inadequate as indicated.

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HECTOR PEREZ, v. NEW YORK CITY TRAN. AUTHO
(May 13, 2010)