Marco v. Sachs

• Court: New York Supreme Court
• Writing for the Court: JACOB J. SCHWARTZWALD
• Citation: Marco v. Sachs, 170 N.Y.S.2d 390, 12 Misc.2d 518 (N.Y. Sup. Ct. 1958)
• Decision Date: 06 January 1958
• Parties: Ida MARCO, as Ancillary Administratrix, etc., Plaintiff v. Arthur SACHS, et al., Defendants.

Page 390

170 N.Y.S.2d 390

12 Misc.2d 518

Ida MARCO, as Ancillary Administratrix, etc., Plaintiff v. Arthur SACHS, et al., Defendants.

Supreme Court, Special Term, Kings County, Part I.

Jan. 6, 1958.

David M. Palley, New York City, for plaintiff, Morris Gottlieb, New York City, of counsel.

Sullivan & Cromwell, New York City, for moving defendants, Milton Pollack, Henry N. Ess, III, New York City, of counsel.

Fennelly, Eagan, Nager & Lage, New York City, for Blue Ridge Corp. and Ridge Realization Corp., Leo C. Fennelly, New York City, of counsel.

JACOB J. SCHWARTZWALD, Justice.

The defendants move for a dismissal of the second amended complaint (1) pursuant to section 181 of the Civil Practice Act and Rule 156 of the Rules of Civil Practice for failure to prosecute the issues to trial, and (2) pursuant to section 299 of the Civil Practice Act for the willful failure of the plaintiff Ida Marco in 1956 to comply with the notice of examination and orders of this court to appear for examination before trial. The plaintiff by cross-motion moves for a reconsideration of the original motion to strike out the second amended complaint and, upon such reconsideration, for an order denying the said motion of the defendants.

The defendants made similar motions in 1956 and the motion to dismiss for the willful failure of the plaintiff to appear for examination was granted unless she appeared for examination on the 26th day of July, 1956. The plaintiff failed to appear on the date set and appealed to the Appellate Division from the order of July 2, 1956, granting the examination and several other orders (Marco v. Sachs, 4 App.Div.2d 785, 165 N.Y.S.2d 563), 564.

The present motions were argued at length and voluminous papers submitted and decision was reserved. Upon the appeal above referred to from the order of July 2, 1956, the Appellate Division reversed the Special Term stating as follows: 'The question before the court on the motion to dismiss was whether or not Ida Marco's failure to appear for examination at that time was willful. The order staying proceedings was made more than a year earlier and was, at most, a holding that no sufficient excuse for her failure to appear had then been shown. The Special Term should decide, on the record submitted and on such other evidence as the parties may be advised to present, whether Ida Marco's failure to submit to an examination before trial in 1956 was willful. If there was such a willful default, the complaint should be dismissed; otherwise, the motion should be denied. The Special Term may consider, on the question of the claimed physical incapacity of Ida Marco to appear for examination, that there is little proof of such condition other than the unsworn statements of two doctors, which are controverted by the evidence produced by the respondents as to her activities. If the Special Term deems it advisable a hearing may be held for the taking of testimony concerning Ida Marco's physical condition.'

In accordance with the suggestion of the Appellate Division this court under date of October 25, 1957, ordered that a hearing be held and that the parties submit personal testimony and other proof as may be necessary to clarify and reveal the plaintiff's actual condition. Pending the holding of such hearing and a determination thereon the decisions on the motions were held in abeyance. An order was entered upon the said decision for a hearing dated the 13th day of November, 1957, and the hearing was set down for the 26th day of November, 1957, at 10 A.M. The hearing was commenced on said date and continued until December 6, 1957, at which time the said hearing was closed. The hearing was extensive, all ...