Hilley v. Sanabria

Nov 19, 2004
Versions:12 A.D.3d 1188
784 N.Y.S.2d 432
2004 N.Y. App. Div. LEXIS 14040

Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered December 29, 2003 in a personal injury action. The order, insofar as appealed from, directed plaintiff’s attorney to pay defendants Michelle A. Tartaglia and Anthony F. Tartaglia the sum of $500 to cover the cost of the late cancellation of a medical examination of plaintiff.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to plaintiffs contention, Supreme Court did not abuse its discretion in ordering plaintiff’s attorney to pay defendants Michelle A. Tartaglia and Anthony F. Tartaglia the sum of $500 “to cover the cost of the late cancellation of the prior medical examination” of plaintiff (see generally CPLR 3126; Adams v Deloreto, 272 AD2d 875 [2000]; Flynn v Debonis, 246 AD2d 852, 853 [1998]). The contentions of plaintiffs attorney that the order constituted a sanction under 22 NYCRR 130-1.1 and that the court did not comply with 22 NYCRR 130-1.2 are without merit. Remedies within the court’s discretion pursuant to CPLR 3126 are different from remedies pursuant to the regulations (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:11), and here the relief sought was under CPLR article 31. Present— Pigott, Jr., PJ., Pine, Scudder, Kehoe and Lawton, JJ.