Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion to strike defendant's pleading:

In this motor vehicle negligence action, plaintiff, Daria Coard ("Plaintiff"), seeks an order from this Court striking the answer of the defendant, Mdanisur Chowdury ("Defendant"), for failing to appear for deposition despite multiple court orders directing him to do so. Defendant opposes. Under the unique facts of this case, the motion is granted, and the answer is stricken.

Plaintiff's cause of action arises from personal injuries allegedly sustained on November 1, 2021, while she was traveling as a rear-seated passenger in a yellow cab that came into contact with an unidentified second vehicle. The cab was operated by defendant. Plaintiff now seeks to strike defendant's answer for failing to appear for his scheduled deposition six times. In the last order directing him to appear to provide deposition testimony, the parties stipulated, and the Court so-ordered, that any further failure by defendant to appear would result in preclusion (NYSCEF Doc No 23). Defendant again failed to appear and is now precluded from testifying. Pertinent here, notwithstanding the preclusion, plaintiff seeks a further sanction, pursuant to [*2]CPLR § 3126, arguing that preclusion alone, under the unique circumstances of this action, prejudices plaintiff's prosecution of this action more than it punishes defendant's defense of same. This Court agrees.

It is well settled that courts should strive to resolve matters on their merits rather than to resort to discovery sanctions (Catarine v Beth Israel Medical Center, 290 AD2d 213, 215 [1st Dept 2015]). Furthermore, courts should not resort to striking an answer for failing to comply with discovery directives unless it is clearly established that the noncompliance is "deliberate and contumacious" (Id.; see also Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193 [1st Dept 1998][citing the standard of noncompliance for striking a pleading as "willful and contumacious"]; Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]). Upon examination of the record sub judice, this Court finds that defendant's noncompliance with the discovery orders herein has been willful and contumacious, such that the sanction of striking his answer under CPLR § 3126 is warranted.

In opposing the instant motion, defense counsel declares, "upon information and belief," that his firm diligently attempted to gain their client's cooperation via telephone and email, from November 2022 to the present, to no avail (NYSCEF Doc No 31 at ¶ 10). Defense counsel further recounts that, on February 12, 2024, it "conferred with defendant and emphasized the importance of his EBT testimony . . . and compliance with Court orders" (Id. at 11). Significantly, defense counsel is silent as to whether any prior attempts to communicate with defendant had proven successful, and the record is vague concerning the nature and quality of defense counsel's efforts to gain defendant's cooperation herein (see Mason v MTA New York City Transit, 38 AD3d 258 [1st Dept 2007][answer struck where party failed to demonstrate a good faith effort to locate a missing witness]).

This action has been delayed for approximately two years during which defendant failed to appear for his deposition six times, notwithstanding multiple court orders directing him to do so. Given defense counsel's lack of specificity concerning his firm's efforts to secure defendant's compliance herein, and its admission that it has been able to communicate at some point during these proceedings, the Court must conclude at this point that his failure to appear is intentional, to wit, willful and contumacious.

Defendants conduct further complicates the unique nature of this case. At her deposition, plaintiff testified that she was asleep in the back seat of the taxi at the time of the accident, and that the driver of the vehicle in which she was traveling sped off from the scene shortly after the incident (NYSCEF Doc No 29 at p 26-7). Consequently, plaintiff has no knowledge of how the accident happened and can identify no other witness to the incident. This leaves the recalcitrant defendant as the sole witness through which she might establish her prima facie case. Stated plainly, by refusing to appear, defendant has self- precluded, greatly prejudicing plaintiff's ability to establish a prima facie case.

Defendant's actions then, having driven off from the accident scene (ostensibly in violation of VTL § 600), as now, by way of his noncompliance with discovery, only serve to prevent plaintiff from having her day in court. If permitted to benefit from such conduct, the Court's interests in having this matter decided on the merits would effectively be defeated (Catarine, 290 AD2d at 215). To be sure, under the circumstances present here, defendant's failure to appear could be viewed as a trial strategy, were preclusion to remain the only sanction available to this Court. It is not. The conditional order of preclusion, which took effect upon defendant's last failure to appear for deposition, does not preclude the Court from striking his [*3]answer as plaintiff requests (Rodriguez v Nevei Bais, Inc., 158 AD3d 597, 598 [1st Dept 2018]). Plaintiff's motion is granted.

Accordingly, it is:

ORDERED that plaintiff's motion to strike defendant's pleading is GRANTED, and the answer of defendant, Mdanisur Chowdhury, is hereby STRICKEN, it is further;

ORDERED that this matter is to be set down for an inquest to take place in Part 14 on September 6, 2024, at 10:00 a.m., and it is further,

ORDERED that plaintiff shall serve a copy of this Order with Notice of Entry on the defendant within thirty (30) days of entry of this Order.

The foregoing constitutes the Decision and Order of the Court.