Paruch v. Kaplan

Appellate Division of the Supreme Court of New York

Paruch v. Kaplan

140 A.D.2d 417, 528 N.Y.S.2d 332, 1988 N.Y. App. Div. LEXIS 4932

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

DecidedMay 9, 1988

StatusPublished

Cited by1 cases

This text of 140 A.D.2d 417 (Paruch v. Kaplan) 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

Paruch v. Kaplan, 140 A.D.2d 417, 528 N.Y.S.2d 332, 1988 N.Y. App. Div. LEXIS 4932 (N.Y. Ct. App. 1988).

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Opinion

The plaintiff failed to establish by evidentiary proof in admissible form that no triable issue of fact exists as to whether the defendant’s conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession (see, Drab v Baum, 114 AD2d 992; Grago v Robertson, 49 AD2d 645). Thus, the court erred in [418]*418granting the plaintiffs renewed motion for summary judgment.

However, the court did not err in denying the defendant’s cross motion to dismiss the complaint on the basis that the plaintiff failed to appear for a court-ordered examination before trial. The defendant failed to establish that this drastic remedy is warranted under the circumstances (see, Mancusi v Middlesex Ins. Co., 102 AD2d 846; Battaglia v Hofmeister, 100 AD2d 833). Thus, the plaintiff is hereby given an additional chance to comply with the direction that she submit to an oral deposition. Though the plaintiff did ultimately submit to an examination before trial, that examination was held after the court granted the plaintiff summary judgment, and presumably was limited to the issue of damages. Thompson, J. P., Kunzeman, Rubin and Harwood, JJ., concur.

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The plaintiff failed to establish by evidentiary proof in admissible form that no triable issue of fact exists as to whether the defendant’s conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession (see, Drab v Baum, 114 AD2d 992; Grago v Robertson, 49 AD2d 645). Thus, the court erred in [418]*418granting the plaintiffs renewed motion for summary judgment.

However, the court did not err in denying the defendant’s cross motion to dismiss the complaint on the basis that the plaintiff failed to appear for a court-ordered examination before trial. The defendant failed to establish that this drastic remedy is warranted under the circumstances (see, Mancusi v Middlesex Ins. Co., 102 AD2d 846; Battaglia v Hofmeister, 100 AD2d 833). Thus, the plaintiff is hereby given an additional chance to comply with the direction that she submit to an oral deposition. Though the plaintiff did ultimately submit to an examination before trial, that examination was held after the court granted the plaintiff summary judgment, and presumably was limited to the issue of damages. Thompson, J. P., Kunzeman, Rubin and Harwood, JJ., concur.

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Bluebook (online)

140 A.D.2d 417, 528 N.Y.S.2d 332, 1988 N.Y. App. Div. LEXIS 4932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paruch-v-kaplan-nyappdiv-1988.

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