Dowlitt v. City of New York

113 A.D.2d 722, 493 N.Y.S.2d 560, 1985 N.Y. App. Div. LEXIS 52404

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1985
• Status: Published

Opinion

Order, Supreme Court, New York County (Helen Freedman, J.), entered August 16, 1984, granting plaintiffs motion to strike the answers of defendants-appellants City of New York and N.Y.C. Health and Hospitals Corp. pursuant to CPLR 3126 on grounds of a default in appearing for deposition, severing the action against them from that against codefendant surgeons, and setting the matter down for an assessment of damages against defendants-appellants, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion denied, without costs or disbursements, on condition that defendants-appellants’ counsel pay plaintiff the sum of $500, or otherwise the order is affirmed. When defendants-appellants failed to produce two nurses for deposition by 10:00 a.m. on May 21, 1984 as they were ordered to do by Justice Cohen, plaintiff moved for and obtained the order under appeal. We reverse solely because there is an unresolved factual dispute whether the parties mutually agreed to extend the deadline to 2:00 p.m. By the sanction imposed, we express our disapproval of defendants-appellants’ counsel’s unwarranted imposition on the plaintiff by producing a witness who had no personal knowledge of the facts, then ignoring a direction of Justice Sandifer to produce the two nurses on December 15, 1978, and finally not observing Justice Cohen’s deadline, seeking instead to extend it, if in fact such an extension was sought. Concur— Murphy, P. J., Ross, Carro, Lynch and Ellerin, JJ.