Thornlow v. Long Island R. Co.
| Decision Date | 02 February 1970 |
| Citation | 307 N.Y.S.2d 1017,33 A.D.2d 1027 |
| Parties | Edward A. THORNLOW, Respondent, v. The LONG ISLAND RAIL ROAD COMPANY, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Hanna & Gallagher, Rockville Centre, for plaintiff-respondent; John V. Hanna, Rockville Centre, of counsel.
George M. Onken, Jamaica, for defendant-appellant; Angelo Granatelli, Jamaica, of counsel.
Before BELDOCK, P.J., and CHRIST, RABIN, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, defendant Long Island Rail Road Company appeals from two orders of the Supreme Court, Suffolk County, (1) one entered April 11, 1969, which granted plaintiff's motion to strike out said defendant's answer because of its wilful failure to appear for examination before trial and (2) the other entered April 29, 1969, which denied said defendant's motion for 'reargument'.
Order of April 29, 1969 reversed, on the law and the facts, without costs; appellant's motion for renewal, misnamed as one for reargument, granted; order of April 11, 1969 vacated; and plaintiff's said motion granted to the limited extent hereinafter indicated.
Appeal from order of April 11, 1969 dismissed, without costs, as academic, in view of the determination herein on the appeal from the order of April 29, 1969.
Appellant's motion for 'reargument' was actually one for renewal of plaintiff's motion, as it was based upon additional affidavits and exhibits. Hence, we will disregard its misnomer and treat the order denying 'reargument' as an appealable order denying renewal of plaintiff's motion (Matter of Rand, 273 App.Div. 859, 76 N.Y.S.2d 670; Matter of Lesser v. Board of Educ. of City of N.Y., 18 A.D.2d 388, 239 N.Y.S.2d 776; Matter of Kornfeld v. Wagner, 15 A.D.2d 921, 225 N.Y.S.2d 605).
In our opinion, the motion for renewal should have been granted and, upon renewal, the order striking out appellant's answer should have been vacated and plaintiff's motion granted to the limited extent herein indicated. On this record it does not clearly appear that appellant's failure to produce its former employee, Mauceri, for examination was wilful and deliberate. Hence, it was an improvident exercise of discretion to impose the drastic sanction of striking out its answer. Under all the circumstances of this case, we find it a fair sanction, and so order, that appellant be precluded from calling Mauceri as a witness at the...
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