Carter v. County of Erie

6 A.D.3d 1178, 775 N.Y.S.2d 721, 2004 N.Y. App. Div. LEXIS 6159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J), entered August 14, 2002. The order denied plaintiffs motion, granted defendants’ motion and cross motion and dismissed the CPLR article 78 petition and complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion and cross motion in part and reinstating the complaint on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry and as modified the order is affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs motion, incorrectly designated a CPLR article 78 petition, seeking an order compelling disclosure, expediting the trial and granting declaratory relief. The court erred, however, in granting those parts of the respective motion and cross motion of defendants seeking dismissal of the action pursuant to CPLR 3126. Defendants failed to establish the terms of the disclosure orders allegedly violated by plaintiff or that her alleged violations of those orders were willful and contumacious (see Rosner v Blue Channel Corp., 131 AD2d 654, 655 [1987]; see also Carpenter v Browning-Ferris Indus., 307 AD2d 713, 715-716 [2003]). We therefore modify the order by denying the motion and cross motion in part and reinstating the complaint on condition that plaintiff appear for an examination before trial within 40 days of service of a copy of the order of this Court with notice of entry (see generally Fox v Eastman Kodak Co., 275 AD2d 921 [2000]). Present—Green, J.P, Wisner, Hurlbutt, Kehoe and Lawton, JJ.