Rosner v. Blue Channel Corp.
Decision Date | 15 June 1987 |
Citation | 131 A.D.2d 654,516 N.Y.S.2d 736 |
Parties | Grace ROSNER, appellant, v. BLUE CHANNEL CORPORATION, etc., Respondent. |
Court | New 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that the appeal from the order dated January 21, 1986, is dismissed, without costs or disbursements, as that order was superseded by the order dated April 28, 1986, made upon reargument; and it is further,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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