Semsky v. Jo-Mar Bake Shop Inc.
| Decision Date | 12 March 1958 |
| Docket Number | JO-MAR |
| Citation | 177 N.Y.S.2d 560,12 Misc.2d 371 |
| Parties | Morris SEMSKY and Isedor Schulman, Plaintiffs, v.BAKE SHOP Inc. and Sherwin Grossfield, Assignee for the Benefit of Creditors for Jo-Mar Bake Shop, Inc., and Regan Purchase & Sales Corp., Defendants. |
| Court | New York Supreme Court |
Leonard Glickstein, New York City, for plaintiffs.
Friedman & Friedman, New York City, for defendant, Jo-Mar Bake Shop, Inc.
Samuel Newfield, New York City, for defendant, Grossfield.
On the argument (February 18, 1958) of the instant motion (pursuant to notice dated January 22, 1958, and returnable February 11, 1958), defendants' notice of motion (dated February 15, 1958, and returnable February 27, 1958) to vacate plaintiffs' notice, dated October 28, 1957, was withdrawn as an affirmative application, and leave was granted to submit the papers thereon as additional answering affidavits in opposition to the present motion.
By this application, plaintiffs seek to strike the answers of defendants, including the counterclaim of defendant Regan Purchase & Sales Corp., and to permit plaintiffs to enter judgment, upon the ground that defendants failed to appear on November 13, 1957, for their examination before trial in pursuance of plaintiffs' notice therefor, dated October 28, 1957, heretofore referred to. The motion is denied.
Defendants had duly moved to vacate the notice, which motion acted as a stay (Civil Practice Act, Sec. 291). The order (per Spector, J.) on that motion (dated December 5, 1957) denied defendants' application to vacate, with leave to renew upon proper papers, 10 Misc.2d 628, 169 N.Y.S.2d 340. The fact that defendants did not move promptly to renew their motion to vacate or that they did not voluntarily appear for examination does not justify striking the answers, for the order denying the motion to vacate did not fix a time and place at which defendants were directed to appear for such examination. Plaintiffs' remedy was to move to resettle the order so as to have it provide such a direction.
In so holding, I do not condone defendants' procedures, especially since examinations are to be arranged, if at all possible, on a professional consensual basis (Marie Dorros Inc., v. Dorros Bros., Inc., 274 App.Div. 11, 14, 80 N.Y.S.2d 25, 27). Therefore, giving consideration to the papers before me and plaintiffs' application for other and further relief, defendants are directed to appear for...
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Burger v. Barnett
...be available on a consensual basis (Marie Dorros, Inc. v. Dorros Bros., 274 App.Div. 11, 14, 80 N.Y.S.2d 25, 28; Semsky v. Jo--Mar Bake Shop, 12 Misc.2d 371, 177 N.Y.S.2d 560). After several adjournments the plaintiff was finally able to start examining the defendants, Jewish Hospital of Br......
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Kozak v. 244 East 2nd Realty, Inc.
...than that the parties arrange for the examination of a knowledgeable employee on a consensual basis (Semsky v. Jo-Mar Bake Shop, Inc., 12 Misc.2d 371, 372, 177 N.Y.S.2d 560, 561). Absent a stipulation in writing or on the record, plaintiffs should, perhaps, then and there have applied to th......
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Waugh v. Firemen's Fund Ins. Co.
...and why the time of examination could not have been arranged on a 'professional consensual basis' (Semsky v. Jo-Mar Bake Shop, 12 Misc.2d 371, 372, 177 N.Y.S.2d 560, 561). (4)Under the statute, the notice 'may require the production books, papers and other things in the possession, custody ......
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Quinn v. City of New York
...still is-- for the parties to arrange for mutual examinations on a professionally consensual basis (Semsky v. Jo-Mar Bake Shop Inc., 12 Misc.2d 371, 372, 177 N.Y.S.2d 560, 561, citing Marie Dorros, Inc. v. Dorros Bros., 274 App.Div. 11, 80 N.Y.S.2d 25). In any event, in the present circumst......