Wexler v. Malpeso

Appellate Division of the Supreme Court of New York

Wexler v. Malpeso

251 A.D.2d 49, 672 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 6415

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

DecidedJune 4, 1998

StatusPublished

Cited by2 cases

This text of 251 A.D.2d 49 (Wexler v. Malpeso) 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

Wexler v. Malpeso, 251 A.D.2d 49, 672 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 6415 (N.Y. Ct. App. 1998).

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Opinion

—Orders, Supreme Court, New York County (Karla Moskowitz, J.), entered March 25, 1997, and order, same court (Beverly Cohen, J.), entered December 1, 1997, which denied defendant’s motion to strike plaintiffs’ action from the trial calendar, denied defendant’s motion for additional discovery of plaintiffs, and, upon the grant of plaintiffs’ motion for reargument, modified a prior order quashing plaintiffs’ subpoenas duces tecum only to the extent of permitting plaintiffs to serve non-party witness subpoenas in accordance with a conference disclosure order, unanimously affirmed, without costs.

Defendant’s answer has been properly struck and an inquest ordered (see, Wexler v Malpeso, 234 AD2d 149), and, as a further consequence of his default, defendant has forfeited his right to take plaintiff’s deposition (see, Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 573). However, since plaintiffs’ damage claims are not deemed admitted by reason of the striking of defendant’s answer (see, Curiale v Ardra Ins. Co., 88 NY2d 268, 279), the motion court properly ruled that plaintiffs’ entitlement to punitive damages could not be determined in advance of the inquest. We have considered defendant’s remaining arguments and find them to be without merit. Concur — Milonas, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.

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—Orders, Supreme Court, New York County (Karla Moskowitz, J.), entered March 25, 1997, and order, same court (Beverly Cohen, J.), entered December 1, 1997, which denied defendant’s motion to strike plaintiffs’ action from the trial calendar, denied defendant’s motion for additional discovery of plaintiffs, and, upon the grant of plaintiffs’ motion for reargument, modified a prior order quashing plaintiffs’ subpoenas duces tecum only to the extent of permitting plaintiffs to serve non-party witness subpoenas in accordance with a conference disclosure order, unanimously affirmed, without costs.

Defendant’s answer has been properly struck and an inquest ordered (see, Wexler v Malpeso, 234 AD2d 149), and, as a further consequence of his default, defendant has forfeited his right to take plaintiff’s deposition (see, Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 573). However, since plaintiffs’ damage claims are not deemed admitted by reason of the striking of defendant’s answer (see, Curiale v Ardra Ins. Co., 88 NY2d 268, 279), the motion court properly ruled that plaintiffs’ entitlement to punitive damages could not be determined in advance of the inquest. We have considered defendant’s remaining arguments and find them to be without merit. Concur — Milonas, J. P., Wallach, Tom, Mazzarelli and Saxe, JJ.

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Bluebook (online)

251 A.D.2d 49, 672 N.Y.S.2d 723, 1998 N.Y. App. Div. LEXIS 6415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wexler-v-malpeso-nyappdiv-1998.

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