Summary
In Abazoglou v Tsakalotos (36 A.D.2d 516, app dsmd 29 N.Y.2d 544) plaintiff was held bound by a prior order directing that he submit to an examination before trial in New York.
Summary of this case from Zuckerman v. City of N.YOpinion
January 19, 1971
Order, Supreme Court, New York County, entered on July 27, 1970, denying defendants' motion to strike complaint pursuant to CPLR 3126, and granting plaintiff's cross motion for a protective order, and further directing an open commission, at defendants' expense, unanimously reversed on the law and the facts and in the exercise of discretion, defendants' motion granted and the complaint dismissed, unless plaintiff appears for examination in the New York forum within two months of the service of a copy of the order entered hereon with notice of entry thereon upon him by defendants, at a time convenient for plaintiff; and the cross motion is denied. Appellants shall recover of respondent $50 costs and disbursements of this appeal. The previous order of Mr. Justice SAYPOL, dated April 23, 1970, directing the appearance of the plaintiff in this forum, was never appealed from. Instead, further extensions were secured, but not honored by the plaintiff. The nonresident plaintiff, having invoked the courts of New York for affirmative relief, must comply with our judicial directions. No appeal having been taken from the order of Mr. Justice SAYPOL, plaintiff may not be relieved of its burden by a Special Term of concurrent jurisdiction. ( Empire Mut. Ins. Co. v. West, 22 A.D.2d 938; 32 N.Y. Jur., Judges, § 21; 1 Carmody-Wait 2d, New York Practice, p. 76, § 2:64.) Further, by failing to renew his motion for a protective order within the time allowed in the order of Mr. Justice SAYPOL, and instead, procuring extensions of time within which to appear, plaintiff is estopped and foreclosed from seeking the relief sought on the cross motion. (See Rechner v. Brand, 17 A.D.2d 833; Coffey v. Ohrbachs, Inc., 22 A.D.2d 317; Mount Sinai Hosp. v. Davis, 8 A.D.2d 361.) Under the circumstances here prevailing, there was no valid basis for granting an open commission in Greece, particularly at the expense of defendants. (See 7 Carmody-Wait 2d, New York Practice, p. 109, § 42:62; Gazerwitz v. Adrian, 28 A.D.2d 556.) And we observe that the papers submitted in support of the cross motion are no more impressive than those properly found to be deficient by Mr. Justice SAYPOL.
Concur — McGivern, J.P., Markewich, Nunez and Steuer, JJ.