Alvarado v. The Fair

91 A.D.2d 985, 457 N.Y.S.2d 577, 1983 N.Y. App. Div. LEXIS 16285

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1983
• Status: Published

Opinion

— In an action to recover damages for personal injuries, plaintiff appeals, as limited by her brief, (1) from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated February 9, 1982, as granted the defendants’ motion to dismiss her complaint and (2) from so much of a further order of the same court, dated March 22, 1982, as, upon granting reargument, adhered to its original determination. Appeal from the order dated February 9, 1982 dismissed, without costs or disbursements. Said order was superseded by the order dated March 22,1982 which was entered upon reargument. Order dated March 22, 1982 reversed insofar as appealed from, without costs or disbursements, and, upon reargument, order dated February 9, 1982 modified by adding after the word “dismissed”, the following “unless plaintiff’s attorney personally pays defendant $750 and plaintiff submits to an examination before trial and complies with defendants’ demand for witnesses, demand for wage verification and demand for hospital authorizations all dated November 1, 1979”. The $750 payment is to be made within 10 days after service upon the plaintiff’s attorney of a copy of the order to be made hereon, with notice of entry. The examination before trial is to be held on such date and place as shall be fixed by defendants by a written notice of not less than 10 days, served upon plaintiff’s attorney, or at such time and place as the parties may agree. Compliance with the above-noted demands shall be on the same date that the examination is held. Under the circumstances of this case, dismissal of the complaint is inappropriate and the conditions imposed are appropriate (see Cinelli v Radcliffe, 35 AD2d 829). Lazer, J. P., Gibbons, Niehoff and Boyers, JJ.