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Fitterer v. Gus Riedlinger's Towing Service, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 2000
271 A.D.2d 403 (N.Y. App. Div. 2000)

Opinion

Submitted February 16, 2000.

April 3, 2000.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Seidell, J.), dated March 23, 1999, which denied that branch of their motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Ronald J. Fitterer did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126 based on the plaintiffs' failure to comply with court-ordered discovery or to preclude the plaintiffs pursuant to CPLR 3124 and 3126 from offering any evidence as to items numbered "Sixth", "Ninth", "Tenth", and "Eleventh" in the defendants' demand for a bill of particulars only to the extent of directing Ronald J. Fitterer to submit to an independent medical examination on 10 days prior written notice within 45 days after receipt of a copy of the order with notice of entry.

Ronan, McDonnell Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellants.

Joseph V. Schettino, Valley Stream, N.Y., for respondents.

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

We agree with the Supreme Court that there is an issue of fact as to whether the plaintiff Ronald J. Fitterer sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Moore v. Tappen, 242 A.D.2d 526 ). In addition, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court, and the drastic remedies of striking a pleading or preclusion should only be invoked upon a showing of conduct which is willful, contumacious , or in bad faith (see, Garnett v. Hudson Rent A Car, 258 A.D.2d 559 ; Maillard v. Maillard, 243 A.D.2d 448 ;Kubacka v. Town of N. Hempstead, 240 A.D.2d 374 ). The Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was to dismiss the complaint or to preclude the plaintiffs from offering certain evidence only to the extent of directing the plaintiff Ronald J. Fitterer to submit to an independent medical examination.


Summaries of

Fitterer v. Gus Riedlinger's Towing Service, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 2000
271 A.D.2d 403 (N.Y. App. Div. 2000)
Case details for

Fitterer v. Gus Riedlinger's Towing Service, Inc.

Case Details

Full title:RONALD J. FITTERER, et al., respondents, v. GUS RIEDLINGER'S TOWING…

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

Date published: Apr 3, 2000

Citations

271 A.D.2d 403 (N.Y. App. Div. 2000)
707 N.Y.S.2d 327

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