Asim v. City of New York
Justice Larry Schachner
Cablevision employee, Asim, was laying cable wire when a police vehicle allegedly sped over the wire causing Asim to be dragged 10 feet and sustain injuries. The vehicle was later identified as an MTA police car. Asim moved for summary judgment on liability, and sought to strike defendants' answer precluding the testimony of Officer Perez. Defendants denied ownership, operation and control of the vehicle, and cross-moved for summary judgment. The court noted defendants failed to respond to Asim's discovery demands, and several court orders, including preliminary conference orders, directing them to exchange incident or accident reports. Defendants maintained they did not own, operate or control the subject vehicle, thus were not the proper party to the action. Defendants now, for the first time, identified the driver of the MTA vehicle and provided an affidavit from him. The court ruled defendants' failure to provide discovery or comply with court orders for over three years constituted willful and contumacious, evasive behavior warranting striking the answer. It noted defendants consistently maintained their lack of operation or ownership of the vehicle, and now changed position without a reasonable explanation.