Boyle v. City of New York , 701 N.Y.S.2d 896 ( 2000 )

—Order, Supreme Court, New York County (Richard Braun, J.), entered November 23, 1998, which denied the motion of defendants-appellants to vacate a June 16, 1998 order (same court and Justice) striking the answer of defendant Rodriguez and directing an assessment of damages, unanimously reversed, on the law, without costs, and the answer reinstated.

While defendants Rodriguez, Carro, and Ibiza Restaurant answered plaintiff’s amended complaint together, only defendant Rodriguez’s answer was deemed stricken. The only possible reasoning supporting imposition of that sanction against Rodriguez alone was to penalize his failure to appear for depositions pursuant to CPLR 3126; were the penalty imposed for counsel’s failure to appear at a pretrial conference, then the entire answer on behalf of all of the Ibiza defendants would have been stricken. However, we have held that the drastic remedy of striking a pleading for failure to comply with discovery should not be made in a preliminary conference order, but rather, must be made by motion, on notice (Postel v New York Univ. Hosp., 262 AD2d 40, 42). Consequently, the order cannot stand. Concur — Rosenberger, J. P., Williams, Lerner, Saxe and Buckley, JJ.