Thadford Realty Co. v. L.V. Income Properties Corp.

• Decision Date: 04 June 1984
• Citation: 476 N.Y.S.2d 348,102 A.D.2d 823
• Parties: THADFORD REALTY COMPANY, et al., Respondents, v. L.V. INCOME PROPERTIES CORP., Defendant; H. Laurence Reinhard, III, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 348

476 N.Y.S.2d 348

102 A.D.2d 823

THADFORD REALTY COMPANY, et al., Respondents, v. L.V. INCOME PROPERTIES CORP., Defendant; H. Laurence Reinhard, III, Appellant.

Supreme Court, Appellate Division, Second Department.

June 4, 1984.

Kerry Gotlib, New York City (Marshall D. Sweetbaum, Bellerose, of counsel), for appellant.

Somer & Ward, P.C., Commack, for respondents.

Before BRACKEN, J.P., and O'CONNOR, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover a brokerage commission upon a sale of real property, defendant H. Laurence Reinhard, III, appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (GOWAN, J.), entered June 13, 1983, as granted plaintiffs' motion to the extent of precluding him from giving testimony at the trial of this action.

Order reversed insofar as appealed from, without costs or disbursements, and motion denied as to the appellant upon condition that appellant's attorney personally pay plaintiffs the sum of $250, within 10 days after service upon him of a copy of the order to be made hereon, with notice of entry, and that appellant submit to an examination before trial, at a time and place to be fixed by plaintiffs by a written notice of not less than 10 days, to be served upon appellant's attorney, or at such time and place as the parties may agree; in the event these conditions are not complied with, order affirmed insofar as appealed from, with costs.

Under the circumstances of this case, we view the imposition of conditions, including a monetary sanction, as the appropriate judicial response upon appellant's failure to appear at the scheduled examination before trial (see, e.g., Spiegel v. Goodman, 98 A.D.2d 815, 470 N.Y.S.2d 32; Everin v. Greyhound Elevator Corp., 97 A.D.2d 832, 469 N.Y.S.2d 14; Plainview Assoc. v. Miconics Inds., 90 A.D.2d 825, 455 N.Y.S.2d 835).

It does not appear that appellant's failure to attend was willful and contumacious, and he should therefore be given one more opportunity to submit to the examination (Spiegel v. Goodman, supra; Everin v. Greyhound Elevator Corp., supra; Citizen Sav. & Loan Ass'n v. New York Prop. Ins. Underwriting Ass'n, 92 A.D.2d 907, 460 N.Y.S.2d 118; Cinelli v. Radcliffe, 35 A.D.2d 829, 317 N.Y.S.2d 97).

BRACKEN, J.P., and O'CONNOR, NIEHOFF and BOYERS, JJ., concur.