Rafael Gonzalez, Jr., an Infant, by his Mother and Natural Guardian, Iris Ruiz, et al., Respondents, v. National Car Rental et al., Appellants

Rafael Gonzalez, Jr., an Infant, by his Mother and Natural Guardian, Iris Ruiz, et al., Respondents, v National Car Rental et al., Appellants. [MAJORITY] Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered May 11, 1990, which granted plaintiffs’ motion to strike defendant Pazmino’s answer if said defendant failed to appear for a deposition within 60 days, unanimously modified, on the law and on the facts and in the exercise of discretion, to the extent of allowing plaintiffs to place this matter on the trial calendar and precluding said defendant from testifying at trial unless he is produced for deposition within 60 days from the date of entry hereof and, except as thus modified, affirmed, without costs or disbursements. Despite his assurances to defense counsel, defendant Pazmino, the driver of a car owned by defendant National Car Rental that allegedly struck and injured the infant plaintiff, failed to appear at a court-ordered deposition. Nor could Pazmino be located to reschedule a deposition. His failure to appear was wilful, justifying the relief granted by the IAS court. We are of the view, however, that the disposition reached herein, which was plaintiffs’ alternate request, is the more appropriate one. The fact that Pazmino has disappeared or made himself unavailable provides no basis for denying plaintiffs the relief sought. (See, Moriates v Powertest Petroleum Co., 114 AD2d 888, 889.) Concur—Sullivan, J. P., Milonas, Wallach and Kassal, JJ.