SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
April 22, 1968
SIMON GOLDNER, APPELLANT,
LENDOR STRUCTURES, INC., ET AL., DEFENDANTS, AND INDEPENDENT SHOVEL & CRANE, INC., RESPONDENT
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
In our opinion, defendant's conduct reflected a pattern of behavior which was contumacious and tantamount to willful default, well within the purview of CPLR 3126 and its design, inter alia, to provide some effective means of enforcing a party's right to disclosure and to authorize the imposition, in the court's discretion, of adequate sanctions and penalties as safeguards against recurrences, should the court be inclined, as we are, to afford the recalcitrant party an opportunity to comply and thereby have its day in court. It is our view that under the facts and circumstances at bar, the order of Special Term, by conditionally denying the motion, did not adequately serve such function, and that the conditional granting of the motion, as herein provided and as herein limited, is a more effective exercise of discretion vested in the court by statute. We are also of the opinion that a party, aggrieved by reason of his adversary's willful failure to appear for an examination before trial pursuant to a notice, need not obtain an order under CPLR 3124 as a necessary prerequisite to a motion for the relief afforded under CPLR 3126. We subscribe to the liberal construction of CPLR 3126 advocated by the Appellate Division, First Department (Coffey v. Ohrbachs, Inc., 22 A.D.2d 317), to the effect that the sanctions which may be imposed under said section apply to notices of examination as well as to orders therefor. We consider this more in keeping with the design of the CPLR to provide for a liberal effective disclosure procedure which would be more conducive to an expeditious and efficient disposition of the work in the courts. (See, also, Burbell v. Burman, 44 Misc. 2d 749; Mostow v. Shorr, 44 Misc. 2d 733; Fleming v. Fleming, 50 Misc. 2d 323.)
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