Brothers v. Scott

Appellate Division of the Supreme Court of New York

Brothers v. Scott

81 A.D.2d 753, 440 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 11323

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

DecidedApril 3, 1981

StatusPublished

Cited by2 cases

This text of 81 A.D.2d 753 (Brothers v. Scott) 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

Brothers v. Scott, 81 A.D.2d 753, 440 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 11323 (N.Y. Ct. App. 1981).

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Opinion

— Order unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: Striking pleadings for failure to comply with an order directing submission to an examination before trial is a severe penalty which should be imposed only when failure to comply has been willful or contumacious. Since it is impossible to determine whether defendant’s possible failure to comply with the order will be willful, Special Term erred in striking the answer and counterclaim prospectively (see Ortiz v New York City Health & Hosps. Corp., 72 AD2d 741). The order should be modified by striking therefrom the second decretal paragraph. (Appeal from order of Cayuga Supreme Court — examination before trial.) Present — Dillon, P.J., Cardamone, Doerr, Denman and Moule, JJ.

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— Order unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: Striking pleadings for failure to comply with an order directing submission to an examination before trial is a severe penalty which should be imposed only when failure to comply has been willful or contumacious. Since it is impossible to determine whether defendant’s possible failure to comply with the order will be willful, Special Term erred in striking the answer and counterclaim prospectively (see Ortiz v New York City Health & Hosps. Corp., 72 AD2d 741). The order should be modified by striking therefrom the second decretal paragraph. (Appeal from order of Cayuga Supreme Court — examination before trial.) Present — Dillon, P.J., Cardamone, Doerr, Denman and Moule, JJ.

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Bluebook (online)

81 A.D.2d 753, 440 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 11323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brothers-v-scott-nyappdiv-1981.

Opinion

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