Opinion
Submitted November 3, 2000.
November 28, 2000.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Golar, J.), dated May 13, 1999, which, inter alia, granted that branch of the motion of the defendants third-party plaintiffs which was to extend their time to conduct a physical examination of the plaintiff Nick Parente, (2) an order of the same court, also dated May 13, 1999, which denied, as academic, that branch of their motion which was to strike the third-party defendant's answer and, in effect, denied that branch of their motion which was to strike the defendants' answer on condition that within 20 days of service of a copy of the order with notice of entry, the defendants appear for deposition and pay $750 to the plaintiffs, and (3) an order of the same court, dated December 28, 1999, which denied their motion to strike the defendants third-party plaintiffs' answer on condition that the defendants third-party plaintiffs appear for depositions on a date certain.
Carro, Velez, Carro Mitchell, LLP, New York, N.Y. (John S. Carro of counsel), for appellants.
Barry, McTiernan Moore, New York, N.Y. (Roger P. McTiernan and Laurel A. Wedinger of counsel), for defendants third-party plaintiffs-respondents.
Before: WILLIAM C. THOMPSON, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, without costs or disbursements.
It is well settled that "where a party disobeys a court order, and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court" (Castrignano v. Flynn, 255 A.D.2d 352, 353; see, CPLR 3126; Ranfort v. Peak Tours, 250 A.D.2d 747; Frias v. Fortini, 240 A.D.2d 467; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374). The substitution of their counsel provided the defendants third-party plaintiffs with a reasonable excuse for the delays in discovery (cf., Rodriguez v. All Am. Auto Rental, 179 A.D.2d 632). The Supreme Court providently exercised its discretion in denying the plaintiffs' motion to dismiss the defendants third-party plaintiffs' answer and properly imposed a sanction for their delay (see, Smith v. New York Tel. Co., 235 A.D.2d 529; Athanasiou v. First Nat'l City Bank US Corp., 225 A.D.2d 726).
The Supreme Court also providently exercised its discretion in requiring the plaintiff Nick Parente to submit to a physical examination, where discovery had not been completed (see, Leugemors v. Slawinski, 255 A.D.2d 913; cf., Vitello v. JAM Installers, 264 A.D.2d 774; Gill v. United Parcel Serv., 249 A.D.2d 265).
The plaintiffs' remaining contentions are without merit.