Jordan v. Huntington Hospital Ass'n, s. 1
| Decision Date | 27 November 1972 |
| Docket Number | 4,Nos. 1,s. 1 |
| Citation | 40 A.D.2d 870,337 N.Y.S.2d 943 |
| Parties | James T. JORDAN, etc., et al., Respondents, v. HUNTINGTON HOSPITAL ASSOCIATION et al., Defendants. Leonard M. BIRCH, Appellant, v. Jeremiah JORDAN, Respondent. (and two other titles). Action |
| Court | New York Supreme Court — Appellate Division |
Before HOPKINS, Acting P.J., and SHAPIRO, GULOTTA, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by plaintiff in Action No. 4, Dr. Leonard M. Birch, from an order of the Supreme Court, Suffolk County, entered November 24, 1971, which (1) granted a motion by plaintiffs in Action No. 1 and defendants in ActionsNos. 2, 3 and 4 to consolidate the actions and (2) did not grant the cross motion of plaintiff in Action No. 4 to strike the answer of defendant in Action No. 4 by reason of said defendant's repeated failure to appear for examination before trial.
Order modified by adding thereto a provision granting appellant's said cross motion to the extent of precluding defendant in Action No. 4 from testifying at the trial unless he (1) submits to an examination before trial on such date and place as shall be fixed by appellant by written notice of not less than 10 days, served upon said defendant's attorneys, and (2) pays $250 to appellant's attorneys five days before such date for examination. As so modified, order affirmed with $10 costs and disbursements to appellant against defendant in Action No. 4.
In our opinion, the failures of defendant in Action No. 4 to appear for examination before trial were deliberate and, even if not so contumacious as to warrant the striking of his answer, required the sanctions herein imposed (Cinelli v. Radcliffe, 35 A.D.2d 829, 317 N.Y.S.2d 97).
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