Bernstein v. Burson

Appellate Division of the Supreme Court of New York

Bernstein v. Burson

141 A.D.2d 794, 530 N.Y.S.2d 23, 1988 N.Y. App. Div. LEXIS 7153

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

DecidedJune 27, 1988

StatusPublished

This text of 141 A.D.2d 794 (Bernstein v. Burson) 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.

Bluebook

Bernstein v. Burson, 141 A.D.2d 794, 530 N.Y.S.2d 23, 1988 N.Y. App. Div. LEXIS 7153 (N.Y. Ct. App. 1988).

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Opinion

In a medical malpractice action, the defendant appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), entered April 16, 1987, which denied his motion to dismiss the complaint pursuant to CPLR 3126 for the plaintiffs’ failure to appear for examinations before trial.

Ordered that the order is affirmed, with costs.

Pursuant to a court order, the plaintiff Frieda Bernstein appeared for an examination before trial on January 16, 1985, but neither the defendant nor his attorney was present and their default was noted. Thereafter, on May 7, 1985, Mrs. Bernstein again appeared to be deposed pursuant to another court order, and, again, the defendant did not appear and the defendant’s counsel failed to examine her. The defendant now moves to dismiss because the plaintiffs have failed to appear again for examination. Under the circumstances of this case in which Mrs. Bernstein is a 75-year-old woman whose husband, the plaintiff Sidney Bernstein, is ill and confined to a nursing home, the Supreme Court did not abuse its discretion in finding that the defendant has waived his right to depose the plaintiffs (see, Jenkins v 312 W. 121st St., 30 AD2d 937). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

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In a medical malpractice action, the defendant appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), entered April 16, 1987, which denied his motion to dismiss the complaint pursuant to CPLR 3126 for the plaintiffs’ failure to appear for examinations before trial.

Ordered that the order is affirmed, with costs.

Pursuant to a court order, the plaintiff Frieda Bernstein appeared for an examination before trial on January 16, 1985, but neither the defendant nor his attorney was present and their default was noted. Thereafter, on May 7, 1985, Mrs. Bernstein again appeared to be deposed pursuant to another court order, and, again, the defendant did not appear and the defendant’s counsel failed to examine her. The defendant now moves to dismiss because the plaintiffs have failed to appear again for examination. Under the circumstances of this case in which Mrs. Bernstein is a 75-year-old woman whose husband, the plaintiff Sidney Bernstein, is ill and confined to a nursing home, the Supreme Court did not abuse its discretion in finding that the defendant has waived his right to depose the plaintiffs (see, Jenkins v 312 W. 121st St., 30 AD2d 937). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

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Bluebook (online)

141 A.D.2d 794, 530 N.Y.S.2d 23, 1988 N.Y. App. Div. LEXIS 7153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernstein-v-burson-nyappdiv-1988.

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