Yacht Investors, Inc. v. Burns Manufacturing, Inc.

96 A.D.2d 1070, 466 N.Y.S.2d 654, 1983 N.Y. App. Div. LEXIS 19718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 1983
• Status: Published

Opinion

— In an action, inter alia, to recover damages for breach of contract, pláintiffs appeal from an order of the Supreme Court, Nassau County (Robbins,' J.), dated April 2, 1982, which, upon granting defendants Burns Manufacturing, Inc., and Charles Burns’ motion for renewal and reargument (1) vacated a prior order of the said court dated March 3,1982, which had unconditionally stricken the answer of said defendants and (2) granted plaintiffs’ motion to dismiss the answers of said defendants unless (a) defendant Charles Burns appeared for an examination before trial on May 10, 1982, and (b) defendant Charles Burns paid plaintiffs’ attorneys the sum of $750. Order modified, in the exercise of discretion, by (1) increasing the sum to be paid by defendant Charles Burns to plaintiffs’ attorneys from $750 to $2,500 and (2) striking the words “on May 10, 1982” therefrom and substituting therefor the following: “on October 4, 1983 and each day thereafter until the examination before trial is completed”. As so modified, order affirmed, with costs to the plaintiffs. Defendant Charles Burns’ time to pay the sum of $2,500 to plaintiffs’ attorneys is extended until September 26, 1983. The record reveals a history of willful and extensive delay caused by defendant Charles Bums and Burns Manufacturing, Inc. Under these circumstances, the order appealed from has been modified accordingly. We note that the failure of defendant Charles Burns to comply with either of the conditions set forth in the order will automatically result in the striking of his answer and that of Burns Manufacturing, Inc. Titone, J. P., Mangano,- Gibbons and Gulotta, JJ., concur.