Claybourne v. City of New York
| Decision Date | 16 March 1987 |
| Citation | 128 A.D.2d 667,513 N.Y.S.2d 165 |
| Parties | Diedre CLAYBOURNE, etc., et al., Appellants, v. The CITY OF NEW YORK, et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Wiesen, Gurfein & Jenkins, New York City (Stephan Jenkins, of counsel), for appellants.
Peter L. Zimroth, Corp. Counsel, New York City (June A. Witterschein and Jean Brandon, of counsel), for respondents.
Before THOMPSON, J.P., and NIEHOFF, WEINSTEIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Hyman, J.), dated August 29, 1985, which denied their motion to compel examinations before trial of the municipal defendants and imposed a sanction of $100.
ORDERED that the order is modified, by deleting the provision thereof which imposed a sanction of $100. As so modified, the order is affirmed, with costs to the respondents.
The plaintiffs' motion pursuant to CPLR 3124 for court-ordered depositions was properly denied because no showing was made of a previous demand for pretrial examinations (see, Wiseman v. American Motors Sales Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528). The sanction, however, cannot be imposed because there is neither a statute nor a court rule authorizing its imposition (see, Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d 216, 503 N.E.2d 681).
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