Plainview Associates v. Miconics Industries, Inc.
| Citation | 455 N.Y.S.2d 835,90 A.D.2d 825 |
| Parties | PLAINVIEW ASSOCIATES et al., Respondents, v. MICONICS INDUSTRIES, INC., Appellant, et al., Defendants. |
| Decision Date | 22 November 1982 |
| Court | New York Supreme Court Appellate Division |
Cole & Deitz, New York City (Anthony J. D'Auria and David B. Newman, New York City, of counsel), for appellant.
Wofsey, Certilman, Haft, Lebow & Balin, Valley Stream (David I. Rosenberg, Valley Stream, of counsel), for respondents.
Before O'CONNOR, J.P., and BRACKEN, NIEHOFF and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of a lease agreement, defendant Miconics Industries, Inc. appeals from two orders of the Supreme Court, Nassau County, dated March 1, 1982 and April 13, 1982, which, respectively, (1) granted plaintiffs' motion to strike its answer and (2) denied its motion to renew, reconsider and reargue.
Order dated March 1, 1982, modified, as a matter of discretion, by adding thereto, after the provision granting plaintiffs' motion to strike, the following: "unless defendant Miconics Industries pays the plaintiffs the sum of $750 and appears for a deposition". As so modified, order affirmed. Defendant Miconics Industries shall pay the $750 within 10 days after service upon it of a copy of the order to be made hereon, with notice of entry thereof. If the condition of payment is met, defendant Miconics Industries is directed to appear at an examination before trial at the place designated in the order dated December 7, 1981, at a time to be fixed in a written notice of not less than 10 days, to be given by the plaintiffs, or at such other time and place as the parties may agree. In the event the conditions are not complied with, then the order dated March 1, 1982 is affirmed.
The appeal from the order dated April 13, 1982 is dismissed as academic.
Plaintiffs are awarded one bill of $50 costs and disbursements to cover both appeals.
These appeals arise out of the granting of plaintiffs' motion to strike appellant's answer for failure to appear at a court-ordered examination before trial. After service of the amended complaint and answer, a notice and cross notice to take depositions were exchanged between the parties. The depositions were adjourned on two occasions allegedly at appellant's request and with plaintiffs' consent. Thereafter, appellant requested a further adjournment which plaintiffs refused to grant. Instead, plaintiffs procured an order directing appellant to appear for an...
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