Paruch v. Kaplan

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

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 granting 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.