Torres v. City of New York

280 A.D.2d 393, 721 N.Y.S.2d 227, 2001 N.Y. App. Div. LEXIS 1715

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Marcy Friedman, J.), entered October 11, 2000, which, in an action for personal injuries sustained in a motor vehicle accident allegedly caused by defendant City of New York’s negligence in planning for traffic safety at the intersection where the accident occurred, insofar as appealed from, denied plaintiffs motion pursuant to CPLR 3126 (3) for a default judgment against defendant City, and order, same court and Justice, entered October 2, 2000, which granted defendant Liang’s motion to compel plaintiff to submit to physical examinations, unanimously affirmed, without costs.

While we note our disapproval of defendant-respondent’s continued disregard and frustration of the court’s discovery orders and would uphold a more severe sanction in this matter, we cannot find that the motion court improvidently exercised its discretion in denying plaintiffs motion for a default judgment against the City, and instead granted a conditional order that gives the City one last opportunity to comply with its disclosure obligations before suffering a final sanction that would effectively preclude it from denying its negligence. Defendant Liang’s motion to compel physical examinations of plaintiff was properly granted, even though made after the filing of the note of issue, where disclosure was ongoing by reason of a prior order that directed the filing of the note of issue before the completion of disclosure, and no prior physical examinations of plaintiff have been taken by any of defendants. Concur — Rosenberger, J. P., Nardelli, Andrias, Ellerin and Saxe, JJ.