Wolfson v. Calamel

Appellate Division of the Supreme Court of New York

Wolfson v. Calamel

162 A.D.2d 959, 557 N.Y.S.2d 183, 1990 N.Y. App. Div. LEXIS 9687

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

DecidedJune 22, 1990

StatusPublished

Cited by3 cases

This text of 162 A.D.2d 959 (Wolfson v. Calamel) 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

Wolfson v. Calamel, 162 A.D.2d 959, 557 N.Y.S.2d 183, 1990 N.Y. App. Div. LEXIS 9687 (N.Y. Ct. App. 1990).

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Opinion

Order unanimously modified as an exercise of discretion, and as modified affirmed without costs, in accordance with the following memorandum: The record does not establish that plaintiff’s failure to comply with defendant’s discovery demands or the trial court’s discovery order was [960]*960willful or contumacious; therefore, we conclude that the trial court did not abuse its discretion in denying defendant’s motion to dismiss plaintiff’s complaint or preclude plaintiff from introducing any medical evidence (see, CPLR 3126; Donner v 50 Tom Corp., 99 AD2d 504; Wood v Ford Nursing Home Co., 79 AD2d 841; see also, Gaylord Bros. v RND Co., 134 AD2d 848; Shamash v Ohrbach’s Inc., 57 AD2d 531). Because plaintiff’s counsel’s failure to comply with the prior discovery order caused substantial delays, in the exercise of our discretion we impose a monetary sanction in the sum of $500 on plaintiff’s counsel (see, Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d 871, 872-873; Siebert v 60 Sutton Corp., 99 AD2d 950). (Appeal from order of Supreme Court, Erie County, Wolf, J.—discovery.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.

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Order unanimously modified as an exercise of discretion, and as modified affirmed without costs, in accordance with the following memorandum: The record does not establish that plaintiff’s failure to comply with defendant’s discovery demands or the trial court’s discovery order was [960]*960willful or contumacious; therefore, we conclude that the trial court did not abuse its discretion in denying defendant’s motion to dismiss plaintiff’s complaint or preclude plaintiff from introducing any medical evidence (see, CPLR 3126; Donner v 50 Tom Corp., 99 AD2d 504; Wood v Ford Nursing Home Co., 79 AD2d 841; see also, Gaylord Bros. v RND Co., 134 AD2d 848; Shamash v Ohrbach’s Inc., 57 AD2d 531). Because plaintiff’s counsel’s failure to comply with the prior discovery order caused substantial delays, in the exercise of our discretion we impose a monetary sanction in the sum of $500 on plaintiff’s counsel (see, Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d 871, 872-873; Siebert v 60 Sutton Corp., 99 AD2d 950). (Appeal from order of Supreme Court, Erie County, Wolf, J.—discovery.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.

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Bluebook (online)

162 A.D.2d 959, 557 N.Y.S.2d 183, 1990 N.Y. App. Div. LEXIS 9687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfson-v-calamel-nyappdiv-1990.

Opinion

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