18 N.Y.2d 635 | NY | 1966
Memorandum. Notwithstanding the lower court’s error in determining that plaintiff’s motion for a protective order pursuant to CPLE 3103 should have been addressed to the Appellate Division, rather than to the trial court, the court properly dismissed the complaint — in the sound exercise of its judicial discretion— because of plaintiff’s willful failure to purge himself of his disobedience of prior court orders compelling disclosure on matters relevant to his causes of action and defenses thereto (CPLE 3126). And while it is true that plaintiff’s 3103 motion automatically suspended all disclosure proceedings regarding the
As to plaintiff’s constitutional argument that by compelling disclosure the court is denying him the privilege against self incrimination, the issue was thoroughly discussed and resolved in Levine v. Bornstein (13 Misc 2d 161 [Sup. Ct., 1958], affd. 7 A D 2d 995 [2d Dept.], affd. without opn. 6 N Y 2d 892 [1959]). The privilege against self incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword to harass a defendant and to effectively thwart any attempt by defendant at a pretrial discovery proceeding to obtain information relevant to the cause of action alleged and possible defenses thereto. (See, also, Franklin v. Franklin, 365 Mo. 442; Hazlett v. Bullis, 12 A D 2d 784 [2d Dept., 1961].)
The order of the Appellate Division should be affirmed.
Order affirmed.