Richard Blanding et al., Respondents, v. Return Housing Corp. et al., Appellants

Richard Blanding et al., Respondents, v Return Housing Corp. et al., Appellants. [717 NYS2d 23] [MAJORITY] —Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about May 31, 2000, which granted plaintiffs’ motion to strike defendants’ answer, unanimously modified, on the facts, to grant the motion only as against any defendant that does not appear for deposition within 60 days of the date of this order, and otherwise affirmed, without costs. Plaintiffs did not conclusively show that the nonappearance for deposition of defendant driver and defendant owners of the vehicle involved in the accident, in accordance with a preliminary conference order, was willful, contumacious or in bad faith, and, accordingly, their answer should not have been unconditionally stricken (see, Christian v City of New York, 269 AD2d 135, 137). Although somewhat belated, defendants’ attorneys’ documented efforts to locate defendant driver, who is no longer in the employ of the other defendants, did not demonstrate bad faith or contumacy. In addition, where two previous deposition dates had been adjourned, the first at plaintiffs’ behest, defendants created no protracted delay, and thus the striking of their answer was too drastic a remedy for their failure to appear at the second adjourned date (see, Hunter Mech. Corp. v Salkind, 237 AD2d 180). Concur — Tom, J, P., Mazzarelli, Ellerin, Lerner and Andrias, JJ.