Zletz v. Vilca

144 A.D.2d 300, 533 N.Y.S.2d 883, 1988 N.Y. App. Div. LEXIS 11247

Opinion

Judgment, Supreme Court, New York County (Burton S. Sherman, J.), entered January 15, 1988, dismissing the complaint, unanimously modified, on the law and on the facts and in the exercise of discretion, without costs or disbursements, to deny the cross motions to dismiss on condition that plaintiff, within 20 days of entry of this court’s order, respond fully to interrogatory number 47 and pay $375 each to the attorney for the Wetanson defendants and to the attorneys for the Vilca defendants; upon plaintiff’s failure to so comply, the judgment is affirmed, with costs. The appeal from the order of said court entered on March 7, 1988 is dismissed as having been abandoned.

In this action, commenced in 1981 and with a long tortured procedural history, plaintiff seeks, inter alia, to establish a partnership interest in several restaurant businesses operated by defendants, an accounting and damages. On defendants’ motions the complaint was dismissed because of plaintiff’s repeated failure to answer one interrogatory, consisting of several subparts, in a 63-page set of interrogatories. While, concededly, the interrogatory relates to a matter that is, at best, only peripherally related to the issues, no less than four different courts have, in effect, held that plaintiff must answer. Thus, his obduracy cannot be legally justified. In the circumstances, however, we believe that the sanction of dismissal was draconian. Thus, we modify to afford plaintiff, on the conditions stated, one final opportunity to respond. Concur —Kupferman, J. P., Sullivan, Kassal, Ellerin and Smith, JJ.