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Chen v. Goldstein

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 1998
246 A.D.2d 407 (N.Y. App. Div. 1998)

Opinion

January 15, 1998

Appeal from the Supreme Court, New York County (Beverly Cohen, J.).


We credit plaintiff's attorney's representation that he never received defendants' amended CPLR 3126 notice of motion, necessitated by some unspecified clerical mishap that prevented defendants' first motion for that relief, admittedly received by plaintiff's attorney, from being placed on the court's motion calendar. Nevertheless, we sustain the dismissal of complaint since plaintiff fails to offer a reasonable excuse for his noncompliance with defendants' notices of physical examination. The willful and contumacious character of this noncompliance can be inferred from plaintiff's disappearance and failure to keep his attorney informed of his whereabouts for at least the 11-month period between the attorney's receipt of the notices of physical examination and the date plaintiff was located, more than three months after the CPLR 3126 motion had been granted on default ( see, Reitte v. Entermy Cab Corp., 162 A.D.2d 259). Nor does plaintiff's attorney show that his efforts to locate plaintiff during this period were diligent.

Concur — Sullivan, J.P., Rosenberger, Andrias and Colabella, JJ.


Summaries of

Chen v. Goldstein

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 1998
246 A.D.2d 407 (N.Y. App. Div. 1998)
Case details for

Chen v. Goldstein

Case Details

Full title:GUANG JING CHEN, Appellant, v. SHARON H. GOLDSTEIN et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 15, 1998

Citations

246 A.D.2d 407 (N.Y. App. Div. 1998)
667 N.Y.S.2d 717

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