Kihl v. Pfeffer

CourtNew York Court of Appeals
Writing for the CourtChief KAYE.
Citation94 N.Y.2d 118,700 N.Y.S.2d 87,722 N.E.2d 55
Decision Date30 November 1999
PartiesMERRYL KIHL, Appellant, v. KARL O. PFEFFER et al., Defendants, and HONDA MOTOR Co., INC., Respondent.

94 N.Y.2d 118
722 N.E.2d 55
700 N.Y.S.2d 87

MERRYL KIHL, Appellant,
v.
KARL O. PFEFFER et al., Defendants, and HONDA MOTOR Co., INC., Respondent

Court of Appeals of the State of New York.

Argued October 21, 1999.

Decided November 30, 1999.


Gleason, Dunn, Walsh & O'Shea, Albany (Thomas F. Gleason and James E. Dering of counsel), for appellant.

94 N.Y.2d 119
Lester Schwab Katz & Dwyer, L. L. P., New York City (Eric A. Portuguese and Steven B. Prystowsky of counsel), for respondent

Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

94 N.Y.2d 120
OPINION OF THE COURT

Chief Judge KAYE.

At issue is the dismissal of a complaint against defendant Honda Motor Co., Inc. for plaintiff's failure to respond to Honda's interrogatories within court-ordered time frames. We conclude that the trial court did not abuse its discretion in dismissing the complaint, and affirm the Appellate Division order so holding.

On July 26, 1995, plaintiff commenced a damages action for personal injuries arising out of a one-car accident six months earlier. Alleging that she was a passenger in a Honda that skidded off a Nassau County roadway in the Town of Oyster Bay, plaintiff sued the driver, Karl O. Pfeffer, as well as Honda, the County and the Town. As against Honda she claimed negligence, breach of express and implied warranties, strict products liability and failure to warn in connection with the automobile and its component parts, including the seat belts. Honda responded with a general denial, cross-claims and a host of discovery requests, including demands for expert witness disclosure, collateral source information, no-fault authorizations, medical information and certain records.

On March 18, 1996, the parties convened before the court for a preliminary conference, resulting in an extensive Preliminary Conference Order fixing specific dates for discovery, to be completed within six months. The order was consented to by each party and signed by the Trial Judge. Most pertinently, the order required plaintiff to respond to Honda's interrogatories "within 30 days following receipt of same." That very day Honda served plaintiff with its "First Set of Interrogatories"—34 pages, 92 questions. Having had no response, on September

94 N.Y.2d 121
13, 1996—roughly five months beyond the response date fixed by the Preliminary Conference Order—Honda moved to strike the complaint and dismiss plaintiff's claims against it, or to compel responses within 10 days. Honda alleged that without specificity as to the claimed defect in the automobile it could not adequately prepare its defense. Plaintiff's counsel submitted an affidavit opposing the motion, and that same day—December 10, 1996—served its responses to Honda's interrogatories

Honda, however, persisted in seeking dismissal of the complaint, portraying plaintiff's responses as "woefully inadequate and totally unresponsive in...

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202 practice notes
  • Cioffi v. S.M. Foods, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • August 10, 2016
    ...A.D.3d 768, 770, 911 N.Y.S.2d 398, quoting Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ; see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Silberstein v. Maimonides Med. Ctr., 109 A.D.3d 812, 814, 971 N.Y.S.2d 167 ; John Hancock Life Ins. Co......
  • 150 Centreville, LLC v. Lin Assocs. Architects, PC
    • United States
    • United States State Supreme Court (New York)
    • February 6, 2013
    ...herein, plaintiffs' complaint against the defendants is dismissed pursuant to CPLR § 3126. [963 N.Y.S.2d 823]( See, Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 and 38 A.D.3d 238;Shapiro v. Kurtzman, 32 A.D.3d 508, 820 N.Y.S.2d 311). [39 Misc.3d 517]Three days before the a......
  • Bank of Am., Nat'l Ass'n v. Brannon, 380976/07.
    • United States
    • New York Supreme Court Appellate Division
    • October 31, 2017
    ...). Defendant's mere denial of receipt of service of the motion is insufficient to rebut the presumption of service ( Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ).The dissent agrees that the motion court should have granted plaintiff summary judgment on its fo......
  • Banos v. Rhea, No. 60 No. 61
    • United States
    • New York Court of Appeals
    • May 12, 2015
    ...denial of receipt is insufficient to rebut the presumption contained in paragraph 22(g) of the consent judgment (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829–830, 414 N.Y.S.2d 117, 386 N.E.2d 1085 [1978] ; Mat......
  • Request a trial to view additional results
206 cases
  • Cioffi v. S.M. Foods, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • August 10, 2016
    ...A.D.3d 768, 770, 911 N.Y.S.2d 398, quoting Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ; see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Silberstein v. Maimonides Med. Ctr., 109 A.D.3d 812, 814, 971 N.Y.S.2d 167 ; John Hancock Life Ins. Co......
  • 150 Centreville, LLC v. Lin Assocs. Architects, PC
    • United States
    • United States State Supreme Court (New York)
    • February 6, 2013
    ...herein, plaintiffs' complaint against the defendants is dismissed pursuant to CPLR § 3126. [963 N.Y.S.2d 823]( See, Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 and 38 A.D.3d 238;Shapiro v. Kurtzman, 32 A.D.3d 508, 820 N.Y.S.2d 311). [39 Misc.3d 517]Three days before the a......
  • Bank of Am., Nat'l Ass'n v. Brannon, 380976/07.
    • United States
    • New York Supreme Court Appellate Division
    • October 31, 2017
    ...). Defendant's mere denial of receipt of service of the motion is insufficient to rebut the presumption of service ( Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ).The dissent agrees that the motion court should have granted plaintiff summary judgment on its fo......
  • Banos v. Rhea, No. 60 No. 61
    • United States
    • New York Court of Appeals
    • May 12, 2015
    ...denial of receipt is insufficient to rebut the presumption contained in paragraph 22(g) of the consent judgment (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ; Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829–830, 414 N.Y.S.2d 117, 386 N.E.2d 1085 [1978] ; Mat......
  • Request a trial to view additional results

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