Caridi v. Durst

• Decision Date: 27 June 1996
• Citation: 228 A.D.2d 396,644 N.Y.S.2d 733
• Parties: Frank CARIDI, Sr., Plaintiff-Respondent, v. Shirley DURST, et al., Defendants-Appellants. Robert D. Steetel, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 733

644 N.Y.S.2d 733

228 A.D.2d 396

Frank CARIDI, Sr., Plaintiff-Respondent, v. Shirley DURST, et al., Defendants-Appellants. Robert D. Steetel, et al., Defendants.

Supreme Court, Appellate Division, First Department.

June 27, 1996.

Michael P. Lagnado, for Plaintiff-Respondent.

Eugene Guarneri, for Defendants-Appellants.

Before SULLIVAN, J.P., and ROSENBERGER, RUBIN, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Joan Lobis, J.), entered on or about April 21, 1995, which granted plaintiff's motion to strike defendant-appellant's answer for failure to comply with a previous order requiring production of a witness for an examination before trial and setting the matter down for an inquest and order of the same court and Justice entered October 16, 1995, which denied defendant's motion to vacate the note of issue and to direct further discovery, unanimously affirmed, without costs.

While the death of a party ordinarily divests the court of jurisdiction to conduct proceedings in the action until a proper substitution has been made pursuant to CPLR 1015(a) (see, Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819, 820, 492 N.Y.S.2d 619), we deem the defendant's carrier's active participation in this litigation for more than two years after the death of its insured to constitute a waiver of this impediment inasmuch as there is no showing of prejudice, the deceased defendant having been only a nominal party to the action.

We find no abuse of discretion in the motion court's striking of defendant-appellant's answer for failure to produce a knowledgeable witness since prior orders established this obligation and provided for dismissal if the witness was not produced by a certain date. Finally, inasmuch as defendant did not request a physical examination of plaintiff at the time set by the court in its prior orders, it was not an improvident exercise of discretion to deny defendant's request to strike the note of issue and to conduct this physical examination, as well as further discovery concerning matters which had already been disclosed (see, Price v. Bloomingdale's, 166 A.D.2d 151, 560 N.Y.S.2d 288).