New Island Investors v. Insurance Co. of North America

60 A.D.2d 646, 400 N.Y.S.2d 551, 1977 N.Y. App. Div. LEXIS 14644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1977
• Status: Published

Opinion

In an action, inter alia, to impress a trust upon the proceeds of a policy of fire insurance, defendant Barton appeals from an order of the Supreme Court, Nassau County, dated July 21, 1977, which denied his motion to (1) vacate plaintiffs statement of readiness, (2) have the case stricken from the Trial Calendar and (3) direct the plaintiff and the codefendants to appear for examinations before trial. Order modified by adding thereto, after the word "denied”, the following: "except that defendant’s present counsel may conduct examinations before trial of the plaintiff and the codefendants”. As so modified, order affirmed, without costs or disbursements. The examinations shall proceed at the place designated in the moving papers and at such time as shall be fixed in a written notice of not less than 20 days, to be given by appellant, or at such other time and place as the parties may agree. The time within which such notice may be served is extended until 10 days after entry of the order to be made hereon. In view of the extensive delay practiced by appellant, the Special Term properly refused to vacate plaintiff’s statement of readiness and to strike the case from the Trial Calendar. However, in view of the circumstances set forth in this record, the examinations before trial requested by appellant should have been allowed to the extent set forth herein. Shapiro, J. P., Hawkins, Suozzi and Mollen,. JJ., concur.