On July 25, 2017, Justice Ostrager of the New York County Commercial Division issued a decision in Zoullas v. Zoullas, 2017 NY Slip Op. 31574(U), finding that a plaintiff’s claims were time-barred but nonetheless refusing to grant summary judgment because of the defendant’s failure to appear for deposition despite having been ordered to do so, explaining:
In sum, but for the fact that plaintiff has been deprived of the opportunity to either conduct the deposition of the defendant or call the defendant as an adverse witness at trial, defendant has a meritorious motion for summary judgment. But, absent compelling proof that the defendant is unavailable to participate in these proceedings, there is no basis for granting the defendant summary judgment, particularly where, as here, the defendant has been repeatedly ordered to produce competent medical proof that the defendant cannot participate in these proceedings.
(Internal quotations and citations omitted).