In Trataros Construction Inc., v. New York City School Construction Authority, 2007 NY Slip Op 10526, AD Index 2006-02660, 2006-08769 (Kings Co. Index 20213/01), defendant sought the depositions of Costas Trataros and Nicos Trataros of the plaintiff company, and moved to compel their depositions. The trial court ordered these depositions be held by a date certain or the witnesses would be precluded from testifying at trial. When plaintiff expressly refused to produce these witnesses despite the court order, defendant sought leave to renew its motion, which was denied by the trial court.

In reversing the trial court, and upon renewal, granting defendant’s motion to dismiss plaintiff’s case unless the two witnesses were deposed within a date certain, the Appellate Division-Second Department felt that the trial court failed to account for the willful and contumacious behavior of plaintiff, requiring more than mere preclusion for a sanction.