Swell Wear, Inc. v. DeLuca

Appellate Division of the Supreme Court of New York

Swell Wear, Inc. v. DeLuca

225 A.D.2d 386, 638 N.Y.2d 664, 638 N.Y.S.2d 664, 1996 N.Y. App. Div. LEXIS 2290

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

DecidedMarch 14, 1996

StatusPublished

This text of 225 A.D.2d 386 (Swell Wear, Inc. v. DeLuca) 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

Swell Wear, Inc. v. DeLuca, 225 A.D.2d 386, 638 N.Y.2d 664, 638 N.Y.S.2d 664, 1996 N.Y. App. Div. LEXIS 2290 (N.Y. Ct. App. 1996).

Pincite

Opinion

Plaintiff does not dispute the City’s assertion that the examinations sought have been conducted and that the order appealed from has been superseded by a subsequent order as to which an appeal has been noticed. Under the circumstances, we decline to disturb the decision of the IAS Court refusing to strike the City’s answer. At the same time, however, we must [387]*387admonish the City for its persistent disregard of the orders of the IAS Court as well as the absence of even a colorable excuse for its failure to comply with those orders in a timely fashion. The underlying events in this action occurred in December 1990; the EBTs in question were first scheduled for November 1991. The City produced the relevant witnesses only in May and June of 1995, beyond the 30 days specified in the court’s third order (the subject of this appeal), and, as recently as December 1995, the City had yet to pay the minimal costs ordered by the court. According to the City’s brief, this failure is due to an alleged legal impediment and is in fact the subject of the court’s subsequent order and the ensuing appeal. While we are mindful that the City occupies a somewhat unique position as litigant in many lawsuits, such indifference to multiple judicial orders cannot be tolerated of any litigant in our courts. Concur — Sullivan, J. P., Milonas, Ellerin, Rubin and Kupferman. JJ.

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Plaintiff does not dispute the City’s assertion that the examinations sought have been conducted and that the order appealed from has been superseded by a subsequent order as to which an appeal has been noticed. Under the circumstances, we decline to disturb the decision of the IAS Court refusing to strike the City’s answer. At the same time, however, we must [387]*387admonish the City for its persistent disregard of the orders of the IAS Court as well as the absence of even a colorable excuse for its failure to comply with those orders in a timely fashion. The underlying events in this action occurred in December 1990; the EBTs in question were first scheduled for November 1991. The City produced the relevant witnesses only in May and June of 1995, beyond the 30 days specified in the court’s third order (the subject of this appeal), and, as recently as December 1995, the City had yet to pay the minimal costs ordered by the court. According to the City’s brief, this failure is due to an alleged legal impediment and is in fact the subject of the court’s subsequent order and the ensuing appeal. While we are mindful that the City occupies a somewhat unique position as litigant in many lawsuits, such indifference to multiple judicial orders cannot be tolerated of any litigant in our courts. Concur — Sullivan, J. P., Milonas, Ellerin, Rubin and Kupferman. JJ.

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Bluebook (online)

225 A.D.2d 386, 638 N.Y.2d 664, 638 N.Y.S.2d 664, 1996 N.Y. App. Div. LEXIS 2290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swell-wear-inc-v-deluca-nyappdiv-1996.