[Download] "Joseph J. Siragusa v. Teals Express" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Joseph J. Siragusa v. Teals Express
- Author : Supreme Court of New York
- Release Date : January 11, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
Judgment unanimously reversed, with costs, and motion denied. Memorandum: It was an improvident exercise of discretion for Special Term to vacate plaintiffs note of issue and statement of readiness and to dismiss his complaint for failure to prosecute. Two of the defendants, Morgias and Bell, had noticed plaintiff for an examination before trial (E.B.T.) and Bell had requested a physical examination of plaintiff. Because of the unavailability of defense counsel at various times, a date was not agreed upon. By letter dated December 15, 1981, Bells attorney requested the other attorneys to advise of a mutually convenient date, stating that if he received no response, he intended to move for a day certain for an E.B.T. Instead, both Morgias and Bell served plaintiffs attorney with a 90-day demand pursuant to CPLR 3216. Plaintiff filed and served his note of issue and statement of readiness. Defendants Morgias and Bell then moved to vacate the note of issue and statement of readiness on the grounds that pretrial procedures had not been completed. Special Term granted the motion and dismissed the action for failure to prosecute (CPLR 3216, subd [b]). Special Term found that the statement of readiness which plaintiff was required to file with his note of issue (22 NYCRR 1024.4) was a nullity because it stated that a physical examination was not required and that examinations before trial had been waived, when in fact that was not the case. In so finding, the court imposed upon plaintiff the burden of scheduling defendants examinations before trial despite the fact that they had served the 90-day demand. It is clear from the record that plaintiff did nothing to obstruct defendants discovery and, at most, can be accused of acquiescing in [96 A.D.2d 749 Page 750]