From Casetext: Smarter Legal Research

Phillips v. Serbalik

Appellate Division of the Supreme Court of New York, Third Department
Jan 4, 1990
157 A.D.2d 902 (N.Y. App. Div. 1990)

Opinion

January 4, 1990

Appeal from the Supreme Court, Warren County (Dier, J.).


This is an action brought pursuant to RPAPL article 15 to settle a property-line dispute between the parties. After issue was joined, defendant served a notice to examine plaintiffs before trial on March 10, 1989 at the offices of defendant's attorney and made certain demands for discovery. Defendant's answer contained affirmative defenses and counterclaims. Thereafter, plaintiffs cross-noticed to examine defendant at the same time and place. However, defendant canceled the examination before trial without setting a new date. Plaintiffs then moved for an order directing the appearance of defendant.

Defendant submitted an opposing affidavit but did not appear on the argument of the motion. Defendant, in his affidavit, stated that he had sent plaintiffs a letter indicating that he would not hold the examination before trial until a reply to all of his discovery demands was received and he requested that Supreme Court deny plaintiffs' motion until all demands were answered. Plaintiffs' attorney, in his moving affidavit, claimed that defendant had not responded to plaintiffs' demand for a bill of particulars.

Supreme Court, in its order granting plaintiffs' motion, directed that defendant appear to be examined upon the issues in this action at a date to be set. The order also directed that defendant be precluded from giving testimony or offering proof in the action unless, within 45 days of service thereof, defendant complied with the order. The order further directed that plaintiffs produce certain photographs demanded by defendant.

There should be an affirmance. On this record there is no showing that Supreme Court abused its discretion in the order it fashioned.

Order affirmed, with costs. Casey, J.P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.


Summaries of

Phillips v. Serbalik

Appellate Division of the Supreme Court of New York, Third Department
Jan 4, 1990
157 A.D.2d 902 (N.Y. App. Div. 1990)
Case details for

Phillips v. Serbalik

Case Details

Full title:ROBERT A. PHILLIPS et al., Respondents, v. JOHN SERBALIK, Appellant

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

Date published: Jan 4, 1990

Citations

157 A.D.2d 902 (N.Y. App. Div. 1990)
550 N.Y.S.2d 171

Citing Cases

Phillips v. Serbalik

Appeal from the Supreme Court, Warren County (Dier, J.). Under the circumstances of this case and given the…