Iessi v. Marino

42 A.D.2d 583, 344 N.Y.S.2d 520, 1973 N.Y. App. Div. LEXIS 4203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1973
• Status: Published

Opinion

In a negligence action to recover damages for •personal injuries, plaintiff appeals from an order of the Supreme Court, Westchester County, dated July 25, 1972, which, upon his motion to strike defendant Marino’s answer for the latter’s failure to appear for an examination before trial on three separate occasions, directed that if Marino fails to appear for examination on a stated date, his answer shall be stricken. Order modified by inserting in the decretal paragraph, between “10:00 a.m. ” and “his answer shall be stricken ”, the following: "and unless said defendant Marino’s attorneys pay $350 to plaintiff’s attorney ”. As so modified, order affirmed, with $20 costs and disbursements to appellant. The $350 must be paid within 20 days after entry of the order to be made hereon. Marino’s examination shall proceed at the place set forth in the order under review at a time to he fixed in a written notice of not less than 10 days, to be given by plaintiff, or at such other time and place as may be agreed upon by the parties. It does not appear from the record before us that Marino’s attorneys adequately explained their failure to locate Marino so that he might appear at one of the three separate examinations at which he defaulted. Although we do not think that the three defaults were so willful and contumacious as to warrant the striking out of Marino’s answer, we feel that the conduct of his attorneys shows such a lack of appreciation for proper procedure and careful handling of this matter that it warrants the imposition upon them of the requirement that they compensate plaintiff’s counsel for the additional time spent by him and for his additional inconvenience and expenses which resulted from their conduct. Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.