Read v. Dickson

• Decision Date: 15 May 1989
• Citation: 150 A.D.2d 543,541 N.Y.S.2d 126
• Parties: Edith G. READ, Respondent, v. Donna DICKSON, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 126

541 N.Y.S.2d 126

150 A.D.2d 543

Edith G. READ, Respondent, v. Donna DICKSON, et al., Appellants.

Supreme Court, Appellate Division Second Department.

May 15, 1989.

Mead, Dore & Voute, White Plains (Charles D. Lohrfink, Jr., of counsel), for appellants.

Smith, Ranscht, Pollock, Manos & Connors, P.C., White Plains (George A. Sirignano, Jr., of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, KUNZEMAN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to enjoin the defendants from interfering with an easement of way, the defendants appeal (1) from an order of the Supreme Court, Westchester County (Coppola, J.), entered March 2, 1988, which, inter alia, denied their motion to vacate their default in appearing at court-ordered depositions, and (2) from an order and judgment (one paper) of the same court, entered May 10, 1988, which, upon granting the plaintiff's motion pursuant to CPLR 3126 to strike their answer for failure to appear at the court-ordered depositions, inter alia, permanently enjoined them from interfering with the plaintiff's easement of way.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the order and judgment is reversed, on the law and as a matter of discretion, with one bill of costs, and the motion is denied, on condition that the defendants appear for examinations before trial at a time and place to be specified in written notice of not less than 10 days to be given by the plaintiff, which examinations shall be held within 30 days after the date of this decision and order; and it is further,

ORDERED that in the event the condition is not complied with, then the order and judgment is affirmed, with one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of an order and judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). Indeed, the appellants acknowledge that that order was "superseded", and have abandoned their appeal therefrom.

The drastic sanction of unconditionally striking an answer pursuant to CPLR 3126 for failure to comply with court-ordered discovery should not be invoked unless the resisting party's default is clearly shown to be deliberate and contumacious (see, e.g., Scharlack v. Richmond Mem. Hosp., 127 A.D.2d 580, 511 N.Y.S.2d 380; Linwood Roofing & Contr. Co. v. Olit Assoc., 123 A.D.2d 840, 507 N.Y.S.2d 455; Battaglia v. Hofmeister, 100 A.D.2d 833, 834, 473 N.Y.S.2d 838). The moving party bears the initial burden of coming forward with a sufficient showing of willfulness ( see, Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736; Scharlack v. Richmond Mem. Hosp., supra). The resisting party must then offer a reasonable excuse for his default (see, Rosner v. Blue Channel Corp., supra; Scharlack v. Richmond Mem. Hosp., supra). In opposing a motion made pursuant to CPLR 3126, the resisting party has no statutory obligation to furnish an affidavit of merit ( see, Wolfson v. Nassau County Med....