The First Department recently struck the answers of the City of New York and Metropolitan Transportation Authority for ignoring multiple court orders and then producing a witness who was unable to answer questions at a deposition in McHugh v. City of New York.  The Court established defendants as automatically liable, with damages being the only remaining issue to be established.

McHugh arose in 2012, when plaintiff was injured while constructing the second Avenue Subway in Manhattan.  Plaintiff brought suit in 2014 against both the City and the MTA.  During the course of litigation, the defendants ignored two so-ordered-stipulations to produce a witness “with knowledge,”  so plaintiff moved to strike defendants’ answer.  After the Court order, defendants produced an employee who was “admittedly unprepared,” and could not answer any questions regarding the City and the MTA, or ownership of the tunnel and the ground on which it was built.

Defendants refused plaintiff’s demand to produce an additional witness.  In response, plaintiffs again moved to strike defendant’s answer. Although the lower Court denied plaintiff’s motion, on appeal, the appellate Court found that the trial court improvidently exercised its discretion in failing to strike defendants’ answers. The Court found that defendants’ noncompliance constituted “willfull and contumacious behavior, warranting the striking of their answer.”  The Court highlighted the fact that not only did the defendants fail to provide a timely response but also failed to address plaintiff’s requests meaningfully or with a good-faith effort.

As it goes without saying, the Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition and sufficiently preparing that witness but of paying close attention to the course of litigation and being “reasonable” with the opposing counsel’s demands.  Playing “hardball” too often may have unintended and sometimes harsh consequences.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.