Gaffney v. City of New York

41 Misc. 2d 1049 | N.Y. Sup. Ct. | 1964

James J. Crisona, J.

Motion by plaintiff for an order (1) striking the answers of defendants Lud Realty Co., Inc., and 'Samuel Elefant, granting summary judgment and directing a hearing to assess the damages, and (2) directing the Calendar Clerk not to strike this action from the calendar.

It is apparent from reading plaintiff’s papers that summary judgment is not sought pursuant to rule 3212 of the Civil Practice Law and Rules, but solely as a consequence of an order of the court striking defendants’ answers for their failure to appear for examination before trial. Although the latter relief was obtainable under former section 299 of the Civil Practice Act, it is presently available under section 3126 of the Civil Practice Law and Rules only in the event a party “ refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed”. (Emphasis supplied.) A party is, therefore, required to obtain a court order (>CPLR 3124) or a direction of the court as a condition precedent to seeking any penalties against the defaulting party pursuant to section 3126 of the Civil Practice Law and Rules.

In view of the aforesaid change and the relatively new disclosure procedure, the court treats the first branch of the motion as one to compel disclosure (CPLR 3124), which is disposed of as follows:

1. Denied as to defendant Samuel Elefant, deceased, inasmuch as there has been no substitution of any representative of said defendant to date.

2. Plaintiff and defendant Lud Realty Co., Inc., shall appear for examination at the time and place to be fixed in the order to be entered hereon.

The second branch of the motion should have been made returnable in the Trial Term Part of this court (see Rules of Appellate Division, Second Department, pt. 7, rule V) and is, accordingly, denied without prejudice to an application brought pursuant thereto.