Foley v. Haffmeister

• Decision Date: 18 December 1989
• Citation: 156 A.D.2d 541,549 N.Y.S.2d 48
• Parties: Helen T. FOLEY, Respondent, v. Michael D. HAFFMEISTER, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 48

549 N.Y.S.2d 48

156 A.D.2d 541

Helen T. FOLEY, Respondent, v. Michael D. HAFFMEISTER, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 18, 1989.

White & Quinlan, Garden City (Mark A. Murray, on the brief), for appellants.

Before BRACKEN, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Namm, J.), dated June 12, 1989, as granted the plaintiff's motion to vacate those portions of a prior order of the same Court (Orgera, J.), dated May 13, 1988, which (1)(a) directed the plaintiff to submit to an examination before trial in New York State, and (b) directed the plaintiff to submit to a physical examination within the County of Suffolk, and substituted therefor provisions (a) directing that the plaintiff be deposed on oral questions in the State of California, and (b) directing that two physical examinations of the plaintiff be made in California, (2) denied that branch of the defendants' cross motion which was to compel the plaintiff to appear for an examination before trial and physical examinations in this State, and (3) directed that discovery be completed by September 30, 1989.

ORDERED that the order is reversed insofar as appealed from, with costs, the plaintiff's motion is denied, that branch of the defendants' cross motion which was to compel the plaintiff to appear at an examination before trial and for physical examinations in this State is granted, and the plaintiff is directed to submit to an examination before trial and to two physical examinations, at times and locations within the County of Suffolk or the County of Nassau, to be set forth in a written notice to be provided by the defendants of not less than 10 days, or at such times and locations within the County of Suffolk or the County of Nassau, as the parties may agree; and it is further,

ORDERED that the examinations before trial and the physical examinations shall be conducted within 120 days of the date of this decision and order.

In May 1988 a precalendar conference was held in the Supreme Court, Suffolk County, before Justice Orgera. The plaintiff's attorney failed to appear, but was contacted by telephone, and consented to the various provisions which were contained in the order dated May 13, 1988, following the conference. These provisions included a directive that the plaintiff submit to an examination before trial on July 8, 1988, with "no adjournments [permitted] without prior consent of the Court." The order also directed that the plaintiff submit to a physical examination in the County of Suffolk within 30 days after the completion of the examination before trial.

After a series of adjournments requested by the plaintiff, and after almost a full year had elapsed, the plaintiff's attorney made a motion to vacate provisions of the order entered May 13, 1988, to permit the plaintiff to be deposed on written questions in the State of California. The motion was supported by the hearsay affirmation of the plaintiff's attorney, who stated that at some point after the commencement of the action in February 1987 the plaintiff had moved to California in order to live with her niece. Whether the plaintiff was still a resident of New York at the time of the precalendar order, or as of July of 1988 when her deposition was supposed to have been taken, was not made clear. The plaintiff's attorney asserted that he had been informed by the plaintiff's niece that the plaintiff had...