Schmitt v. Morgan

92 A.D.2d 705, 460 N.Y.S.2d 391, 1983 N.Y. App. Div. LEXIS 16989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1983
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Smyk, J.), entered July 1, 1982 in Delaware County, which conditionally denied plaintiff Schmitt’s motion to dismiss an affirmative defense and counterclaim contained in the answer of defendant Morgan. Plaintiff Schmitt is the trustee in bankruptcy of Charles L. Tellerday. The record reveals that by an order dated March 25, 1982, Special Term directed defendant Morgan to submit to an examination before trial as a condition precedent to the denial of plaintiff Schmitt’s application to strike an affirmative defense and counterclaim from defendant Morgan’s answer. Thereafter, Morgan appeared at such examination but did not produce certain books, records, and other writings pertaining to income earned from the operation of the farm described in plaintiff’s complaint. Morgan maintained that the records were not in his possession, custody or control. The court on the instant motion concluded that the records were accessible to defendant Morgan and within his control but, nevertheless, denied plaintiff’s motion for the relief sought on the condition that defendant Morgan produce the records at an examination within 30 days of service of a copy of the order. This appeal by plaintiff Schmitt ensued. Plaintiff Schmitt contends that he was automatically entitled to the relief originally sought since defendant Morgan failed to comply with the March 25, 1982 order and that Special Term’s failure to grant said relief was an abuse of discretion. We disagree. Considering the record in its entirety, we are unable to conclude that there was an abuse of discretion by Special Term in conditionally denying the motion. The order, therefore, should be affirmed. Order affirmed, without costs. Sweeney, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.