Aldana v. Hertz Penske Truck Leasing, Inc.

Appellate Division of the Supreme Court of New York

Aldana v. Hertz Penske Truck Leasing, Inc.

226 A.D.2d 170, 640 N.Y.S.2d 115

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 1996

StatusPublished

Cited by2 cases

This text of 226 A.D.2d 170 (Aldana v. Hertz Penske Truck Leasing, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aldana v. Hertz Penske Truck Leasing, Inc., 226 A.D.2d 170, 640 N.Y.S.2d 115 (N.Y. Ct. App. 1996).

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Opinion

Judgment, Supreme Court, Nassau County (Ralph P. Franco, J.), entered March 31, 1995, which, inter alia, dismissed plaintiffs complaint with prejudice for failure to comply with a prior order of the same court, entered on or about February 15, 1995, which granted defendants’ cross-motions, pursuant to CPLR 3126, to dismiss the complaint unless plaintiff served a "proper” bill of particulars within 20 days of service upon him, as previously ordered by the court (Francis X. Becker, J.) in its order entered on or about July 25,1994, unanimously modified, on the law and the facts and in the exercise of discretion, without costs, to the extent of ordering, upon a schedule to be set by the IAS Court within 20 days of the entry of our order, an examination before trial of defendant Waltco and a further examination before trial of Penske to enable plaintiff to identify and then obtain within a reasonable time the discovery needed to furnish adequate particulars as to items enumerated in the court’s July 25, 1994 order. In the event of plaintiffs failure to provide such supplemental bills of particulars, or Waltco’s or Penske’s failure to provide the necessary discovery within the time limits set by the IAS Court, such court may, as it deems appropriate, enter a final and unconditional order of preclusion or judgment dismissing the complaint. As so modified, the judgment is otherwise affirmed, without costs.

Appeal from the order of the same court (Francis X. Becker, J.), entered on or about July 25,1994, is dismissed as subsumed in the appeal from the judgment, without costs.

Loath as we are to interfere with the IAS Court’s management of its calendar and although plaintiffs failure to provide responses to the disputed particulars violated the court’s July 25, 1994 and February 15, 1995 orders, there is no showing that he did so deliberately, wilfully or contumaciously. In partial compliance, plaintiff did not indicate an unwillingness to respond, which would have necessitated a motion for a protective order, but verified that in the absence of discovery, he has no knowledge with which to provide the particulars demanded. Under such circumstances, dismissal of his claim was unnecessarily harsh and he should be afforded one last opportunity adequately to comply with defendants’ demands. [171]*171Concur—Sullivan, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.

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Judgment, Supreme Court, Nassau County (Ralph P. Franco, J.), entered March 31, 1995, which, inter alia, dismissed plaintiffs complaint with prejudice for failure to comply with a prior order of the same court, entered on or about February 15, 1995, which granted defendants’ cross-motions, pursuant to CPLR 3126, to dismiss the complaint unless plaintiff served a "proper” bill of particulars within 20 days of service upon him, as previously ordered by the court (Francis X. Becker, J.) in its order entered on or about July 25,1994, unanimously modified, on the law and the facts and in the exercise of discretion, without costs, to the extent of ordering, upon a schedule to be set by the IAS Court within 20 days of the entry of our order, an examination before trial of defendant Waltco and a further examination before trial of Penske to enable plaintiff to identify and then obtain within a reasonable time the discovery needed to furnish adequate particulars as to items enumerated in the court’s July 25, 1994 order. In the event of plaintiffs failure to provide such supplemental bills of particulars, or Waltco’s or Penske’s failure to provide the necessary discovery within the time limits set by the IAS Court, such court may, as it deems appropriate, enter a final and unconditional order of preclusion or judgment dismissing the complaint. As so modified, the judgment is otherwise affirmed, without costs.

Appeal from the order of the same court (Francis X. Becker, J.), entered on or about July 25,1994, is dismissed as subsumed in the appeal from the judgment, without costs.

Loath as we are to interfere with the IAS Court’s management of its calendar and although plaintiffs failure to provide responses to the disputed particulars violated the court’s July 25, 1994 and February 15, 1995 orders, there is no showing that he did so deliberately, wilfully or contumaciously. In partial compliance, plaintiff did not indicate an unwillingness to respond, which would have necessitated a motion for a protective order, but verified that in the absence of discovery, he has no knowledge with which to provide the particulars demanded. Under such circumstances, dismissal of his claim was unnecessarily harsh and he should be afforded one last opportunity adequately to comply with defendants’ demands. [171]*171Concur—Sullivan, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.

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226 A.D.2d 170, 640 N.Y.S.2d 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aldana-v-hertz-penske-truck-leasing-inc-nyappdiv-1996.

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