Goldner v. Lendor Structures, Inc.
| Decision Date | 22 April 1968 |
| Citation | 29 A.D.2d 978,289 N.Y.S.2d 687 |
| Parties | Simon GOLDNER, Appellant, v. LENDOR STRUCTURES, INC., et al., Defendants, and Independent Shovel & Crane, Inc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Louis Gischner, New York City, for plaintiff-appellant; Arthur N. Seiff, New York City, of counsel.
E. Edan Spencer, New York City, for defendant-respondent; Walter Feller, New York City, of counsel.
Before BELDOCK, P.J., and CHRIST, BRENNAN, RABIN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for injury to property, plaintiff appeals from so much of an order of the Supreme Court, Kings County, dated October 17, 1967, as in effect denied his motion, pursuant to CPLR 3126, to impose certain penalties upon the defendant Independent Shovel & Crane, Inc. by reason of its failure on three separate occasions to appear for pretrial examination pursuant to notice therefor. The motion was denied on condition that defendant appear for such examination on another date.
Order reversed insofar as appealed from, with costs and disbursements to plaintiff, and motion granted, with $20 costs, to the extent only that, pursuant to subdivision 1 of CPLR 3126, the issues, to which the information sought in plaintiff's notice of examination dated January 25, 1967 is relevant, are deemed resolved for purposes of the action as against said defendant in accordance with plaintiff's claims, unless: (1) not later than 10 days from the date of entry of this order, said defendant pays to plaintiff $52.50, representing his disbursements necessarily incurred for stenographers' fees; (2) said defendant pays the costs and disbursements awarded on this appeal and the costs on the motion, as herein awarded, not later than 10 days after the same are taxed; and (3) said defendant appears for examination before trial pursuant to plaintiff's 10-day notice therefor in form and content similar to plaintiff's notice dated January 25, 1967, as the same appears in the record on appeal, or as otherwise stipulated, if the parties so agree.
At bar, defendant failed to appear pursuant to a notice of examination on each of three occasions, despite promises to appear, and engaged in a course of conduct which precipitated, Inter alia, plaintiff incurring the expense of a stenographer's appearance fee on each such occasion. In our opinion, defendant's conduct reflected a pattern of behavior which was contumacious and tantamount to wilful default, well within the purview of ...
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