Citizens Savings and Loan Association of New York v. New York Property Insurance Underwriting Association
| Citation | 92 A.D.2d 907,460 N.Y.S.2d 118 |
| Parties | CITIZENS SAVINGS AND LOAN ASSOCIATION OF NEW YORK, Appellant, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Respondent. |
| Decision Date | 21 March 1983 |
| Court | New York Supreme Court Appellate Division |
Raymond B. Schwartzberg, New York City, for appellant.
Ira J. Greenhill, New York City (Charles T. Rubin, New York City, of counsel), for respondent.
Before MOLLEN, P.J., and LAZER, THOMPSON and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover on a policy of fire insurance, plaintiff appeals (1) from an order of the Supreme Court, Queens County, dated January 19, 1982, which granted the defendant's motion to dismiss the complaint due to the plaintiff's "willful refusal" to submit to a court-ordered examination before trial and denied the plaintiff's cross motion to, inter alia, vacate its default in appearing for such examination, (2) from so much of a further order of the same court, dated February 23, 1982, as, upon reargument, adhered to its original determination, and (3) from a judgment of the same court, dated February 25, 1982, which, inter alia, dismissed the complaint.
Appeal from the orders dated January 19, 1982 and February 23, 1982 dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241, 248).
Judgment dated February 25, 1982 reversed, without costs or disbursements, orders dated January 19, 1982 and February 23, 1982 vacated, defendant's motion denied, and plaintiff's cross motion granted to the extent that its default is vacated on condition that it submit to an examination before trial as hereinafter provided, and without prejudice to the renewal of its motion to restore the case to the trial calendar upon the completion of that examination. The examination before trial of the plaintiff shall proceed at such time and place as shall be fixed in a written notice of not less than 10 days, to be given by the defendant, or at such time and place as the parties may agree. In the event that the condition is not complied with, judgment affirmed, with one bill of $50 costs and disbursements.
The complaint herein was ordered stricken due to the plaintiff's failure to submit to a court-ordered examination before trial which was scheduled to be held in the Supreme Court, Queens County, at 9:30 A.M. on July 1, 1981. The default was occasioned by plaintiff's counsel's having been ordered on the previous day (i.e., June 30, 1981), to appear and select a jury in another...
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