Moray v. City of Yonkers
| Decision Date | 17 August 2010 |
| Citation | 906 N.Y.S.2d 508,76 A.D.3d 618 |
| Parties | Angela MORAY, etc., appellant, v. CITY OF YONKERS, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Sanocki Newman & Turret, LLP, New York, N.Y. (David B. Turret of counsel), for appellant.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Darius P. Chafizadeh of counsel), for respondent City of Yonkers.
Katz & Rychik, P.C., New York, N.Y. (Abe M. Rychik and Andrew N. Fluger of counsel), for respondent Ahmed Hakki.
Motion by the appellant, in effect, to amend a decision and order of this Court dated April 13, 2010, which determined appeals from two orders of the Supreme Court, Westchester County, dated March 5, 2009, and June 9, 2009, respectively.
Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion is granted, and the decision and order of this Court dated April 13, 2010 ( Moray v. City of Yonkers, 72 A.D.3d 766, 898 N.Y.S.2d 470), is recalled and vacated, and the following decision and order is substituted therefor:
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Smith, J.), dated March 5, 2009, which, in effect, granted that branch of the motion of the defendantAhmed Hakki pursuant to CPLR 3126 which was to dismiss the complaint to the extent of "precluding the plaintiff from seeking recovery for emotional damages" and (2) an order of the same court dated June 9, 2009, which granted her motion to settle the transcript of the proceedings held in the above-entitled action on December 31, 2008.
ORDERED that one bill of costs is awarded to the plaintiff.
The drastic remedy of striking a pleading or dismissal pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious ( see Northfield Ins. Co. v....
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