Rosner v. Blue Channel Corp.

Decision Date15 June 1987
Citation131 A.D.2d 654,516 N.Y.S.2d 736
PartiesGrace ROSNER, appellant, v. BLUE CHANNEL CORPORATION, etc., Respondent.
CourtNew York Supreme Court — Appellate Division

Jeffrey S. Burns, Westbury, for appellant.

Montfort, Healy, McGuire & Salley, Mineola (Raymond J. Geoghegan and E. Richard Rimmels, Jr., of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Durante, J.), dated January 21, 1986, which granted the defendant's motion pursuant to CPLR 3126 to dismiss the complaint, and (2), as limited by her brief, from so much of an order of the same court, dated April 28, 1986, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated January 21, 1986, is dismissed, without costs or disbursements, as that order was superseded by the order dated April 28, 1986, made upon reargument; and it is further,

ORDERED that the order dated April 28, 1986, is reversed insofar as appealed from, on the law, without costs or disbursements, the order dated January 21, 1986, is vacated, and the motion is denied on condition that the plaintiff's counsel personally pay $1,000 to the defendant within 30 days after service upon him of a copy of this decision and order, with notice of entry; in the event that this condition is not complied with, the order dated April 28, 1986, is affirmed insofar as appealed from, without costs or disbursements.

By order dated October 3, 1984, the defendant's motion to preclude was granted unless the plaintiff complied with certain discovery demands within 30 days. The plaintiff had previously served a verified bill of particulars which had been accepted by the defendant. Thereafter, on or about July 23, 1985, the defendant moved for summary judgment based upon the plaintiff's failure to provide discovery as directed in the October 3, 1984, order. Prior to the return date of the defendant's motion, the plaintiff complied with the required discovery demands. In addition, the plaintiff's attorney opposed the motion, annexing proof of compliance with discovery. The plaintiff's counsel attributed the delay in compliance to the fact that his client had moved to Florida and her whereabouts were unknown for some time. In granting the defendant's motion, the Supreme Court held that the plaintiff...

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  • Klein ex rel. Klein v. Seenauth
    • United States
    • New York City Court
    • March 25, 1999
    ...163 A.D.2d 348, 558 N.Y.S.2d 96; Bermudez v. Laminates Unlimited, Inc., 134 A.D.2d 314, 520 N.Y.S.2d 791; and Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736). Whether the infant plaintiff in this action should be nonsuited for any neglect that may be attributed to her counse......
  • Brady v. County of Nassau
    • United States
    • New York Supreme Court — Appellate Division
    • December 16, 1996
    ...discovery schedule. The plaintiffs did not offer any reasonable excuse for their noncompliance (see, Rosner v. Blue Channel Corp., 131 A.D.2d 654, 655, 516 N.Y.S.2d 736). Under these circumstances, the Supreme Court did not improvidently exercise its discretion in granting the respective mo......
  • Read v. Dickson
    • United States
    • New York Supreme Court — Appellate Division
    • May 15, 1989
    ...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......
  • Kaufman v. Red Ground Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • February 11, 1991
    ...failing to comply with a discovery notice or order (see, Sloben v. Stam, 157 A.D.2d 835, 551 N.Y.S.2d 533; Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736; Mancusi v. Middlesex Ins. Co., 102 A.D.2d 846, 476 N.Y.S.2d 616). Upon our review of the record, however, we find that t......
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