Phillips v. Serbalik

Appellate Division of the Supreme Court of New York

Phillips v. Serbalik

157 A.D.2d 902, 550 N.Y.S.2d 171, 1990 N.Y. App. Div. LEXIS 1

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

DecidedJanuary 4, 1990

StatusPublished

Cited by1 cases

This text of 157 A.D.2d 902 (Phillips v. Serbalik) 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

Phillips v. Serbalik, 157 A.D.2d 902, 550 N.Y.S.2d 171, 1990 N.Y. App. Div. LEXIS 1 (N.Y. Ct. App. 1990).

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Opinion

Mikoll, J.

Appeal from an order of the Supreme Court (Dier, JJ, entered June 16, 1989 in Warren County, which, inter alia, granted plaintiffs’ motion for an order directing the examination before trial of defendant.

This is an action brought pursuant to RPAPL article 15 to settle a property-line dispute between the parties. After issue was joined, defendant served a notice to examine plaintiffs before trial on March 10, 1989 at the offices of defendant’s attorney and made certain demands for discovery. Defendant’s answer contained affirmative defenses and counterclaims. Thereafter, plaintiffs cross-noticed to examine defendant at the same time and place. However, defendant canceled the examination before trial without setting a new date. Plaintiffs then moved for an order directing the appearance of defendant.

Defendant submitted an opposing affidavit but did not appear on the argument of the motion. Defendant, in his affidavit, stated that he had sent plaintiffs a letter indicating that he would not hold the examination before trial until a reply to all of his discovery demands was received and he requested that Supreme Court deny plaintiffs’ motion until all demands were answered. Plaintiffs’ attorney, in his moving affidavit, claimed that defendant had not responded to plaintiffs’ demand for a bill of particulars.

Supreme Court, in its order granting plaintiffs’ motion, directed that defendant appear to be examined upon the issues in this action at a date to be set. The order also directed that defendant be precluded from giving testimony or offering proof in the action unless, within 45 days of service thereof, defendant complied with the order. The order further directed that plaintiffs produce certain photographs demanded by defendant.

There should be an affirmance. On this record there is no showing that Supreme Court abused its discretion in the order it fashioned.

Order affirmed, with costs. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Mikoll, J.

Appeal from an order of the Supreme Court (Dier, JJ, entered June 16, 1989 in Warren County, which, inter alia, granted plaintiffs’ motion for an order directing the examination before trial of defendant.

This is an action brought pursuant to RPAPL article 15 to settle a property-line dispute between the parties. After issue was joined, defendant served a notice to examine plaintiffs before trial on March 10, 1989 at the offices of defendant’s attorney and made certain demands for discovery. Defendant’s answer contained affirmative defenses and counterclaims. Thereafter, plaintiffs cross-noticed to examine defendant at the same time and place. However, defendant canceled the examination before trial without setting a new date. Plaintiffs then moved for an order directing the appearance of defendant.

Defendant submitted an opposing affidavit but did not appear on the argument of the motion. Defendant, in his affidavit, stated that he had sent plaintiffs a letter indicating that he would not hold the examination before trial until a reply to all of his discovery demands was received and he requested that Supreme Court deny plaintiffs’ motion until all demands were answered. Plaintiffs’ attorney, in his moving affidavit, claimed that defendant had not responded to plaintiffs’ demand for a bill of particulars.

Supreme Court, in its order granting plaintiffs’ motion, directed that defendant appear to be examined upon the issues in this action at a date to be set. The order also directed that defendant be precluded from giving testimony or offering proof in the action unless, within 45 days of service thereof, defendant complied with the order. The order further directed that plaintiffs produce certain photographs demanded by defendant.

There should be an affirmance. On this record there is no showing that Supreme Court abused its discretion in the order it fashioned.

Order affirmed, with costs. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

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Bluebook (online)

157 A.D.2d 902, 550 N.Y.S.2d 171, 1990 N.Y. App. Div. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-serbalik-nyappdiv-1990.

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