Passarelli v. National Bank

Appellate Division of the Supreme Court of New York

Passarelli v. National Bank

81 A.D.2d 635, 438 N.Y.S.2d 135, 1981 N.Y. App. Div. LEXIS 11144

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

DecidedApril 20, 1981

StatusPublished

Cited by8 cases

This text of 81 A.D.2d 635 (Passarelli v. National Bank) 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

Passarelli v. National Bank, 81 A.D.2d 635, 438 N.Y.S.2d 135, 1981 N.Y. App. Div. LEXIS 11144 (N.Y. Ct. App. 1981).

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Opinion

— In a negligence action to recover damages for personal injuries, etc., defendant National Bank of Westchester appeals from (1) an order [636]*636of the Supreme Court, Dutchess County, dated July 22, 1980, which granted plaintiffs’ motion to strike the bank’s answer for failure to comply with a prior discovery order dated April 29, 1980 and (2) as limited by its brief, so much of a further order of the same court dated September 24, 1980 as, upon granting reargument, adhered to its original determination. Appeal from order dated July 22, 1980 dismissed, without costs or disbursements. The order was superseded by the order dated September 24, 1980. Order dated September 24, 1980 reversed insofar as appealed from, without costs or disbursements, order dated July 22, 1980 vacated and plaintiffs’ motion denied on condition that within 30 days after the service upon appellant of a copy of the order to be made hereon, with notice of entry thereof, appellant (1) complies with the order dated April 29, 1980 and (2) pays the sum of $1,500, $750 to plaintiffs and $750 to plaintiffs’ counsel. In the event that either of the conditions is not complied with, order affirmed, without costs or disbursements. Appellant ignored a notice of discovery and inspection and thereafter defaulted on a motion to compel disclosure. On the motion to strike its answer, appellant proffered the excuse that real property records pertaining to the ownership of the accident site were lost upon a transfer of ownership and that this had not been ascertained until investigations had been completed. This explanation was readily available to appellant at the time it twice defaulted. Yet it chose to stand mute and default. This type of dilatory tactic resulting in inordinate delay is not excusable, but such conduct does not warrant the severe penalty of striking of the appellant’s answer, but rather warrants the sanctions herein imposed. Hopkins, J.P., Rabin, Gulotta and Thompson, JJ., concur.

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— In a negligence action to recover damages for personal injuries, etc., defendant National Bank of Westchester appeals from (1) an order [636]*636of the Supreme Court, Dutchess County, dated July 22, 1980, which granted plaintiffs’ motion to strike the bank’s answer for failure to comply with a prior discovery order dated April 29, 1980 and (2) as limited by its brief, so much of a further order of the same court dated September 24, 1980 as, upon granting reargument, adhered to its original determination. Appeal from order dated July 22, 1980 dismissed, without costs or disbursements. The order was superseded by the order dated September 24, 1980. Order dated September 24, 1980 reversed insofar as appealed from, without costs or disbursements, order dated July 22, 1980 vacated and plaintiffs’ motion denied on condition that within 30 days after the service upon appellant of a copy of the order to be made hereon, with notice of entry thereof, appellant (1) complies with the order dated April 29, 1980 and (2) pays the sum of $1,500, $750 to plaintiffs and $750 to plaintiffs’ counsel. In the event that either of the conditions is not complied with, order affirmed, without costs or disbursements. Appellant ignored a notice of discovery and inspection and thereafter defaulted on a motion to compel disclosure. On the motion to strike its answer, appellant proffered the excuse that real property records pertaining to the ownership of the accident site were lost upon a transfer of ownership and that this had not been ascertained until investigations had been completed. This explanation was readily available to appellant at the time it twice defaulted. Yet it chose to stand mute and default. This type of dilatory tactic resulting in inordinate delay is not excusable, but such conduct does not warrant the severe penalty of striking of the appellant’s answer, but rather warrants the sanctions herein imposed. Hopkins, J.P., Rabin, Gulotta and Thompson, JJ., concur.

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Bluebook (online)

81 A.D.2d 635, 438 N.Y.S.2d 135, 1981 N.Y. App. Div. LEXIS 11144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passarelli-v-national-bank-nyappdiv-1981.

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