Furniture Fantasy, Inc. v. Cerrone

• Decision Date: 16 October 1989
• Citation: 546 N.Y.S.2d 133,154 A.D.2d 506
• Parties: FURNITURE FANTASY, INC., Appellant, v. Louis CERRONE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 133

546 N.Y.S.2d 133

154 A.D.2d 506

FURNITURE FANTASY, INC., Appellant, v. Louis CERRONE, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 16, 1989.

Gwertzman, Pfeffer, Lefkowitz, Greenwald & Burman, New York City (Andrew G. Vassalle, of counsel), for appellant.

Waxman, Miller & Trautwig, P.C., Great Neck (Michael Majewski, on the brief), for respondent Louis Cerrone.

Gerard A. Gilbride, Jr., Woodbury (Ann K. Kandel, of counsel), for respondents Bam Realty Co. and Theodore Ain.

Before THOMPSON, J.P., and RUBIN, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated April 18, 1988, which granted the defendant Louis Cerrone's motion, in which the defendants Theodore Ain and Bam Realty Co. joined, to strike the plaintiff's complaint pursuant to CPLR 3126.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The nominal plaintiff in the instant subrogation action, Furniture Fantasy, Inc., failed to produce its principal for an examination before trial as required by an order of the Supreme Court, Queens County (Leviss, J.), dated October 2, 1986, which was issued after a pretrial conference. Subsequently, at a second conference held in November 1987 the court orally directed that the examination take place on January 6, 1988. The plaintiff, however, once again failed to produce the witness to be examined.

Approximately one month later the defendant Cerrone moved to strike the plaintiff's complaint pursuant to CPLR 3126, and the defendants Bam Realty Co. and Theodore Ain joined in the motion. In opposition to the motion, the appellant argued that, although the lawsuit was being prosecuted in the name of its insured, the action was one in the nature of subrogation, and that the insurer lacked control over its insured and the witness designated to appear at the examination. The insurer's counsel further contended that the insured had moved its business prior to the commencement of the lawsuit and initially could not be located. The insured was eventually located and a witness, Christine Darrow, agreed at first to appear at the examination before trial. However, Ms. Darrow subsequently declined to appear on the advice of her attorney, because she had commenced an unrelated lawsuit against the insurer. The insurer's counsel claimed he had previously been unaware of the suit against his own client. He provided no further description of this "unrelated" action. Although over 15 months from the date of the first order directing an examination before trial had elapsed and although a second default occurred on January 6, 1988, the insurer's counsel's affirmation failed to supply any elaboration of precisely what efforts were made over this lengthy period...