Opposition Brief — Picinic v. Seatrain Lines, Inc.

ii I [ gE D

No. 91-528

ferie U.S.

'

QCT 23 if9}

\ PAK OF THE CLERR

IN THE

Supreme Court of the United States

OcTosBer Ters:. 1991

MATE PICINIC.

Petitioner,

VS.

SEATRAIN LINES, INC., SEATRAIN REALTY CORP.,

and JACKSON TANKER CORP.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION — FIRST DEPARTMENT

RESPONDENTS’ BRIEF IN OPPOSITION

LAWLOR, CAULFIELD, GALVIN,

HELLER & HARRIS

Attorneys for Respondents

80 John Street

New York, New York 10038

(212) 493-6300

Davin S. HELLER, Esq.

Counsel of Record

bs

QUESTIONS PRESENTED

Was the dismissal of petitioner’s complaint for failure to

comply with a conditional order of dismissal, issued after

six years of dilatory litigation tactics in accordance with

settled New York State Jaw, a denial of petitioner’s right

to due process?

Does the dismissal of petitioner’s complaint present a

substantial federal question meriting review by this Court?

eee

TABLE OF CONTENTS

DUEeEMNe FRESENIED ...................

5 8 ee yy 4, ys » Sa

TABLE OF AUTHORITIES...................

SUMMARY OF ARGUMENT..................

STATEMENT OF THE CASE .................

ARGUMENT

POINT I:

No Substantial Federal Question is Presented

I

APPENDIX A - Notice to Take Deposition, July

ee

APPENDIX B - Notice of Motion for a Protective

EES ee

APPENDIX C - Order of the Supreme Court of

the State of New York (Edwards, J.) Denying

Motion, August 8, 1963 .....................

APPENDIX D - Notice of Motion to Compel

Discovery, May 20, 1067....................

APPENDIX E - Order of the Supreme Court of

the State of New York (Danzig, J.) Granting

Stay of All Proceedings, May 22,1985 ........

APPENDIX F - Note of Issue, Certificate of

Readiness and Attorney Affirmation, June 18,

EE

10

B-]

C-]

D-1

E-]

F-]

iv

Page

APPENDIX G - Order of the Supreme Court of

the State of New York (Blyn, J.) Striking Note

OG Hamu; Fomed 36, BOGS... ... 5. ec eens. G-1

APPENDIX H - Notice of Motion for Preliminary

Conference and tv Compel Discovery, May 29,

En ADE Paee Se NE ORR oF rhe IRS AP Nae H-1

APPENDIX I - Notice of Cross Motion to

Preclude and Terminate Discovery, September

FC POE ie Bs hte oes ek i es, I-]

APPENDIX J - Preliminary Conference Order,

SI WE IES foo os et Sue os aa ds oc. J-1

APPENDIX K - Decision of Appellate Division of

the Supreme Court of the State of New York

Dismissing Plaintiff's Appeal, August 31, 1989 . K-]

APPENDIX L - Order of the Supreme Court of

the State of New York (Freedman, J.)

Conditionally Dismissing Plaintiff's Complaint,

UY Fp UU onc ses ccreen ent cccevceccn L-1

APPENDIX M - Order of the Supreme Court of

the State of New York (Freedman, J.)

Dismissing Plaintiffs Complaint, November 16,

WE © hha 4 oie e Peano cic ve M-]

APPENDIX N - Order of the Supreme Court,

Appellate Division Unanimously Affirming the

Order of the Trial Court, January 8, 199]..... N-]

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES

CITY OF NEW ORLEANS V. NEW ORLEANS

WATER WORKS CO., 142 U.S. 79 (1891) .... 5

HAMMOND PACKING CO. V. STATE OF

ARKANSAS, 212 U.S. 322 (1909) ............ 1, 5, 6

7, 8

HOVEY V. ELLIOT, 167 U.S. 409 (1897) ...... 6, 7,8

INSURANCE CORP. OF IRELAND V.

COMPAGNIE DES BAUXITES De GUINEA,

456 U.S. 694 (1982) ......... Eva eenaes so 6, 7,9

LOGAN V. ZIMMERMAN, 455 U.S. 422 (1982) . 6,7

NATIONAL HOCKEY LEAGUE V.

METROPOLITAN HOCKEY CLUB, 427 U.S.

Say eer 7,8

SOCIETE INTERNATIONALE V. ROGERS, 357

“ee FSO es ee eee 6, 8

ZUCHT V. KING, 260 U.S. 174 (1922) ......... 5

OTHER FEDERAL CASES

DRESSLER V. M.V. SANDPIPER, 331 F.2d, 130

| errr ry re ree ee eee 8

TEN V. SVENSKA ORIENT, 87 FRD 551

NE olen re cvs dcisneseddsss: s

WILKINS V. AMERICAN, 401 F.2d 151 (2d Cir.

SERS ISAS» ada eee 5

vi

YANITELLI AND HELLER V. NAVIERAS DE

PUERTO RICO 103 FRD 413 (S.D.N.Y. 1984)

and 106 FRD 42 (S.D.N.Y. 1985) ............

STATE COURT CASES

BOSSONE V. GENERAL ELECTRIC, 144

A.D.2d 1044, 535 N.Y.S.2d 287 (1988)........

HELLER V. MUTUAL MARITIME, 78 A.D.2d

786, 433 N.Y.S.2d 11 (1980) ................

PEROS V. CIA DE NAV, 75 Misc.2d 913, 349

N.Y.S.2d 926 (1973) ......0.......000000.-.

WILLIAM V. HERTZ AND HELLER, 9] ~

A.D.2d 548, 457 N.Y.S.2d 23, affd 59 N.Y.2d

893, 465 N.Y.S.2d 937 (1982)................

WILKINS V. AMERICAN EXPORT, 46 A.D.2d

244, 362 N.Y.S.2d 168, affd 38 N.Y.2d 758,

381 N.Y.S.2d 51 (1975) .....................

ZLETZ V. WETANSON, 67 N.Y.2d 711, 499

N.Y.S.2d 933 (1986)........................

STATUTES

58 U.S.C. Sec 197 =... eee... ..

NEW YORK CIVIL PRACTICE LAW AND

RULES (CPLR) Sec. 3126 (3)................

FEDERAL RULES OF CIVIL PROCEDURE

RULE 37... 210545558 eee

Page

No. 91-528

IN THE

Supreme Court of the United States

OcrosBer TERM, 1991

MATE PICINIC,

Petitioner,

VS.

SEATRAIN LINES, INC., SEATRAIN REALTY CORP.,

and JACKSON TANKER CORP.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION — FIRST DEPARTMENT

RESPONDENTS’ BRIEF IN OPPOSITION

SUMMARY OF ARGUMENT

A state court may constitutionally dismiss a pleading as a sanc-

tion for a party’s failure to provide court-ordered discovery.

Hammond Packing Co. v. State of Arkansas, 212 US 322 (1909).

This petition seeks review of a state court's dismissal of a per-

sonal injury complaint after literally years of disregard and flat

defiance of state court directions to furnish discovery. From the

institution of this action in 1983 until its dismissal in 1989, peti-

tioner was afforded the opportunity to conduct this litigation

in an orderly and professional manner and to pursue his per-

sonal injury claim consistent with the due process dictates of

the Fifth and Fourteenth Amendments. That petitioner failed

to do so does not constitute a due process violation on the part

of the state court which dismissed his complaint, nor is any

substantial federal question presented thereby which merits

Supreme Court review. 28 U.S.C. Sec. 1257.

STATEMENT OF THE CASE

The underlying action seeks to recover for personal injuries

allegedly sustained when petitioner tripped and feil at his place

of employment on April 28, 1980. Petitioner commenced his

lawsuit in the Supreme Court of the State of New York, New

York County, by service of a summons and complaint on April

20, 1983, barely one week before the applicable personal in-

jury statute of limitations would have barred the action as un-

timely. In July, 1983, defendant served a demand to take peti-

tioner’s deposition pursuant to applicable New York court rules

(Appendix A). Rather than submitting to an oral examination

of his claims, petitioner embarked upon a six years odyssey of

avoidance and delay in providing discovery by moving for a pro-

tective order vacating the demand (Appendix B). This motion

was denied by order of the New York State Supreme Court dated

August 8, 1983. The Supreme Court further ordered that peti-

tioner submit to a deposition August 22, 1983 (Appendix C),

which the petitioner failed to do. Defendants thereafter moved

once more for an order directing plaintiff to appear for a depo-

sition and submit to a physical examination (Appendix D). Peti-

tioner thereupon moved to stay all discovery pending the hear-

ing and determination of a related appeal. This motion resulted

in a stay of all proceedings without prejudice to defendants’

right to conduct discovery after determination of the appeal

(Appendix E).

This appeal was determined in favor of the defendants by the

Appellate Division, First Department of the Supreme Court of

the State of New York. Rather than providing the long-sought

discovery, petitioner then attempted to place the action on the

trial calendar. In conjunction with this attempt, petitioner’s

present counsel served and filed what is termed a Certificate

of Readiness, dated June 17, 1986, falsely stating under oath

that service of a Bill of Particulars, a physical examination of

plaintiff by defendants’ physicians, the exchange of medical

information as well as other discovery devices, including deposi-

tions were “not required” (Appendix F). This compelled defend-

ants to make a motion to strike the action from the trial calen-

dar, and to force petitioner to comply with outstanding discovery

demands. Defendants’ motion resulted in a Special Master’s rec-

ommendation to strike the case from the calendar upon the

grounds that the defendants had not had a reasonable oppor-

tunity to depose the plaintiff, contrary to the Certificate of

Readiness (Appendix G). This recommendation was later

adopted by the Supreme Court, and, in order to secure the

discovery, defendants moved for a conference and to have the

court supervise the proceedings (Appendix H). Despite the fact

that his client had not been deposed or examined by defendants’

doctors, petitioner’s counsel filed a cross-motion once more seek-

ing to strike all discovery demands and to terminate discovery

(Appendix I).

These motions resulted in an order of the Supreme Court

granting defendants motion, setting a date for depositions of

all parties and directing that plaintiff furnish CAT Scans taken

in 1981, inter alia. Petitioner again sought to avoid providing

discovery by appealing from this order and defaulting in com-

plying with the court’s directions (Appendix J). Although an in-

terlocutory appeal was filed from this order, it was never

perfected and was finally dismissed on defendants’ motion (Ap-

pendix K).

The passage of time coupled with the petitioner's refusal to

comply with the most rudimentary discovery demands had

prejudiced the ability of defendants to defend the lawsuit,

necessitating a motion to dismiss the complaint. On September

7, 1989 the Supreme Court granted the motion unless petitioner

appeared for a deposition, submitted CAT scans that had been

taken of him and underwent at least one medical] examination

by October 23, 1989. The court further conditioned its order

ee

upon the payment of $1,000 by petitioner’s counsel to defendants’

law firm. The Supreme Court found that petitioner has been

guilty of dilatory practices which had severely prejudiced the

defendants, and the petitioner was clearly warned that “Failure

to comply with any of the above directions shall result in the

striking of the complaint and dismissal of the action. . ” (Ap-

pendix L). Petitioner did not appeal this order or seek a protec-

tive order pursuant to the appropriate provisions of the New

York Civil Practice Law and Rules (“CPLR”). Neither did he,

or any of the attorneys in his employ, comply with the order.

(Appendix M)

Instead, as noted by the Appellate Division — First Depart-

ment, “plaintiff waited until some of the court-ordered dates

had passed and then sought reargument. Since plaintiff was well

aware of the terms of the conditional order of dismissal, and

no satisfactory excuse has been proffered for his non-compliance,

dismissal of the complaint was proper. . ” (Appendix N). That

court further noted that almost no discovery had been provided,

although the accident had allegedly occurred in 1980, and that

the petitioner “had frustrated defendants attempts to conduct

discovery.” Contrary to petitioner’s statement of facts, neither

the Supreme Court nor the Appellate Division found that peti-

tioner’s failure to provide an affidavit of actual engagement was

the reason for the dismissai. Indeed, the affidavit was never sub-

mitted to the Court below, even belatedly, nor was it a part of

petitioners’ record on appeal. Rather it appeared for the first

time in a motion to re-argue the Appellate Division's affirmance

of the Trial Court’s dismissal. In actuality, the complaint was

dismissed due to petitioner’s persistent and contumacious refusal

to provide discovery and the prejudice to the defendant which

naturally resulted from his dilatory tactics.

ARGUMENT

POINT I

NO SUBSTANTIAL FEDERAL QUESTION IS

PRESENTED

It is a basic tenent of appellate practice that the Supreme

Court will not review the judgment of a state court unless a

substantial federal question is presented. Zucht v. King, 260 U.S.

174 (1922). The bare averment of a federal question is not suf-

ficient to invoke federal jurisdiction. City of New Orleans v.

New Orleans Water Works Co., 142 U.S. 79 (1891). The peti-

tioner herein presents no basis for his claim. The dismissal! of

his complaint was nothing more than a condign response by the

court below to petitioner’s six-year history of dilatory tactics.

The petition does not seek to review any novel question of law

or procedure, nor does it seek to resolve a conflict between federal

or state courts. The dismissal of petitioner’s complaint does not

involve any important public policy issue, nor does it have any

effect other than to discontinue vexatious litigation which had

gone on for too long with too little merit.

The power of a state court to dismiss a complaint for failure

to dismiss a complaint for failure to provide discovery was

reviewed by the Court in Hammond v. Arkansas, supra. The

majority opinion (per Mr. Justice White) stated that the exer-

cise of the power to dismiss in circumstances similar to those

presented herein was entirely proper. In such cases, striking a

pleading is an exercise of authority based upon the presump-

tion that the defaulting party lacks a meritorious defense (or

cause of action) and such a dismissal is not repugnant to federal

constitutional rights.

In the case at bar, a trial judge exercised her discretion to

penalize a party for a six year history of wilful and contumacious

defiance of discovery orders, including an explicit final-

opportunity order. This exercise of discretion was explicitly

authorized by state law. N.Y. CPLR 3126(3). Furthermore, the

State’s highest Court has upheid both that statute and the exer-

cise of its power by a trial court. Zletz v. Wetanson, 67 NY2d

7ll, 499 NYS2d 933 (1986). Finally, both the Appellate Divi-

sion and the New York Court of Appeals unanimously upheld

the trial judge's action.

It is elementary to the orderly dispensation of justice that,

faced with a wilfull and contumacious disobedience of its orders,

a court must be able to visit sanctions, including the striking

of pleadings, upon the recalcitrant party. This Court has so held

since Hammond Packing v. State of Arkansas, supra.

Hammond Packing, was specifically in the minds of the

authors of the Federal Rules of Civil Procedure, which call for

just such sanctions as Petitioner now claims to be Unconstitu-

tional. See FRCP 37(b)(2)(iii) and the notes of the Advisory

Committee.

The Advisory Committee's notes distinguished Hovey v. Elliot,

167 US 409 (1897), vet, incredibly, Petitioner cites that case,

which concerns punishment for contempt, as if it were control-

ling authority.

Compounding petitioners disingenuous use of citation, is his

treatment of the recent history of the Hovey/Hammond distinc-

tion. The Supreme Court has treated with those cases three

times. Petitioner mentions the first two such occassions; name-

ly Societe Internationale v. Rogers, 357 US 197 (1958), and

Logan v. Zimmerman, 455 US 422 (1982). He simply ignores

the third, which is the most recent and the most authoritative

case, Insurance Corp. of Ireland v. Compagnie Des Bauxites de

Guinea, 456 US 694 (1982).

In Societe Internationale, supra, plaintiff could not comply

with certain discovery demands without violating the penal

law of a foreign sovereign. The Court found that plaintiff had

shown good faith. 357 US at 201. In the case at bar, petitioner

refused simple civil discovery and was held to be wilful and

contumacious.

In Logan, supra, a complainant, through no fault of his own,

missed a short statutory statute of limitations by five days,

because the state’s factfinding body had mis-scheduled a con-

ference. 455 US at 426. Hovey and Hammond are mentioned

in a string citation to the effect that there are Constututional

limitations on arbitrary dismissals of civil causes of action. To

compare the faultless five day default in Logan with Petitioner's

six year compaign of defiance is simply not serious.

In Insurance Company of Ireland, supra, this Court (Justice

White writing for a Court unaminous in the result, Justice Powell

concurring) authoritatively applied the Hovey/Hammond

distinction to FRCP 37, and held dismissal of a pleading (there,

the striking of a defense) was Constitutionally proper.

“The expression of legal rights is” often subject to

certain procedural rules: The failure to follow these

rules may well result in a curtailment of the rights. . .

Rule 37(b)(2)(A) itself embodies the standard

established in Hammond Packing Co. v. Arkansas, 212

US 322, 53 L Ed 530, 29 S Ct 370 (1909), for the due

process limits on such rules. There the Court held that

it did not violate due process for a state court to strike

the answer and render a default judgment against a

defendant who failed to comply with a pretrial

discovery order...

Insurance Corp. of Ireland v. Compagnie Des Bauxites, supra,

456 US at 705-706.

The Federal Courts have exercised their power under FRCP

37, as indeed they must unless anarchy is to reign in the Courts.

See, e.g., a case remarkably similar to the one at bar, National

Hockey League v. Metropolitan Hockey Club, 427 US 639,

640-641 (1976)(dismissal after 17 months defiance); rehearing

denied 429 US 874. In National Hockey League an Appellate

Court reversed the trial Court’s exercise of discretion, and this

Court reversed and re-instituted the dismissal. In the case at

bar, no judge has even expressed doubt that the trial Court was,

if anything, too long-suffering with the recalcitrant petitioner.

Mindful, perhaps, of the wide swath of disruptive behavior

that petitioner has carved through the state and federal Courts,

the trial court exercised its discretion, based on a six year record,

in such a way as to be unanimously upheld in the State Court

system. Any alternative ruling, indeed, would have been con-

ducive of the notorious disruptive tactics of Petitioner’s attorney,

Kenneth Heller, which has been commented on in no less than

nine reported cases. See Wilkens v. American, 401 F.2d 151 (2d

Cir. 1968); Ten v. Svenska Orient, 87 FRD 551 (SDNY 1980);

Dressler v. M.V. Sandpiper, 331 F.2d 130,133 (2d Cir. 1964);

Yanitelli and Heller v. Navieras de Puerto Rico, 103 FRD 413,

(SDNY 1984) and 106 FRD 42,43 (SDNY 1985). Also see the same

case, third opinion, 1985 West Law 440. William v. Hertz and

Heller, 91 AD2d 548, 457 N.Y.S.2d 23, (lst Dept.) aff'd 59 NY2d

893, 465 NYS2d 937 (1982) Bossone v. General Electric, 144

AD2d 1044, 535 NYS2d 287 (1988); Peros v. Cia De Nav., 75

Misc.2d 913, 349 NYS2d 926 (1973); Wilkins v. American Ex-

port, 46 AD2d 244, 362 N.¥.S.2d 168, Affd. 38 NY2d 758,381

NYS2d 51 (1975); Heller v. Mutual Maritime, 78 AD2d 786, 433

NYS2d 11 (1980). This course of conduct is exactly the sort of

flouting of the courts that New York’s CPLR 3126, not less than

FRCP 37, is meant to deter. See National Hockey League v.

Metropolitan Hockey Club, supra, 427 US at 643.

The situation in Hammond was specifically

distinguished from that in Hovey v. Elliot, 167 US 409,

42 L Ed 215, 17 S Ct 841 (1897), in which the Court

held that it did violate due process for a court to take

similar action as “punishment” for failure to obey an

order to pay into the registry of the court a certain

sum of money. Due process is violated only if the

behavior of the defendant will not support the Ham-

mond Packing presumption. A proper application of

Rule 37(b)(2) will, as a matter of law, support such

a presumption. See Societe Internationale v. Rogers,

357 US 197, 209-213, 2 L Ed 2d 1255, 78 S Ct 1087

(1958). If there is no abuse of discretion in the applica-

tion of the Rule 37 sanction, as we find to be the case

here (see Part III), then the sanction is nothing more

than the invocation of a legal presumption, or what

is the same thing, the finding of a constructive waiver.

Insurance Corp. of Ireland v. Compagnie Des Bauxites, supra,

465 US at 705-706.

Thus, absent an abuse of discretion, dismissal of a pleading

for failure to cooperate in discovery is constitutionally sound

as a matter of law. In the case at bar, the state courts have

unanimously held that the trial court did not abuse its discre-

tion. The Supreme Court of the United States, it is respectfully

submitted, is not presented with a substantial federal question,

when it is asked to review a trial court’s exercise of discretion

in a slip and fall case. The exhibits to this brief show, if such

showing were needed, that the trial Court did not abuse its

discretion.

For six years the petitioner was given the opportunity to ob-

tain redress for his perceived injuries. That he failed to do so,

due to his own intransigence or that of his counsel, may have

prevented a hearing on the merits of the claim, but these events

were not due to lack of due process, nor do they present a federal

question worthy of scrutiny by this Court.

10

CONCLUSION

The petition should be dismissed.

Respectfully Submitted,

LAWLOR, CAULFIELD, GALVIN,

HELLER & HARRIS

Attorneys for Respondents

80 John Street

New York, New York 10038

(212) 493-6300

DAVID S. HELLER, ESQ.

OF COUNSEL

APPENDICES

ood

A-l

SUPREME COURT OF STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., ET AL.,

Defendant.

NOTICE TO TAKE DEPOSITION UPON

ORAL QUESTIONS AND TO PRODUCE

PLEASE TAKE NOTICE, that pursuant to Article 31, CPLR,

the Deposition upon oral questions of the person(s) named will

be taken as follows:

TO BE

EXAMINED: Plaintiff

DATE &

TIME: August 25, 1983, 10:00 A.M.

PLACE: Supreme Court : New York County

60 Centre Street

New York, New York 10007

PLEASE TAKE FURTHER NOTICE, that pursuant to Rule

3111, CPLR, each plaintiff and any co-defendant is required to

produce the following items at the deposition:

(1) The motor vehicle report prepared by or on behalf of the

witness.

(2) All medical bills and any receipts, cancelled checks or

estimates relating to special damages.

(3) If lost earning are claimed, Federal and State Income Tax

returns covering the year when loss claimed and two years

prior thereto and one year after loss claimed.

A-2

(4) Any contracts, leases or documents relied upon with

respect to the claim.

(5) Any statement given by or on behalf of any defendant

serving this notice.

(6) Any and all exhibits, papers and/or documents relative

to claim. :

McLAUGHLIN, SIMONE &

DATED: New York, New York LAWLOR

July 8, 1983 Attorneys for Defendant(s)

80 John Street

DOCKET # 830511 SEA New York, New York 10038

FILE # 111LRT898531] Tel. No. (212) 668-9210

EBT’s (212) 668-9270, 71, 72

To:

KENNETH HELLER, ESQ.

Attorney(s) for Plaintiff(s)

277 Broadway

New York, New York 10007

B-1

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against — Notice of Motion

SEATRAIN LINES, INC., SEATRAIN _ Index No. 16200/83

REALTY, JACKSON TANKER

CORPORATION,

Defendant.

SIRS:

PLEASE TAKE NOTICE, that upon the annexed affirmation

of KENNETH HELLER, dated July 13, 1983 the exhibits an-

nexed thereto and upon all the prior pleadings and proceedings

heretofore had herein, the undersigned will move before this

Court at the Supreme Courthouse, 60 Centre Street, New York,

New York, at a Special Term Part 1A thereof, on August 8th,

1983 at 9:30 am or as soon thereafter as counsel can be heard for

a protective order vacating defendants notice to take deposition

upon oral questions and to produce, and for such other, further

and different relief as to this Court may seem just and proper.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR

§ 2214(b), sufficient notice having been given, opposing papers,

if any, shall be served upon the undersigned at least five (5) days

prior to the return date of this motion.

Dated: New York, New York

July 13, 1983

Yours, etc.

KENNETH HELLER

Attorney for Plaintiff

To: McLaughlin, Simone 277 Broadway

& Lawlor New York, New York 10007

Attorneys for Defendants

30 John Street

New York, New York 10038

B-2

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN

REALTY, JACKSON TANKER

CORPORATION, Index No. 16200/83

Defendant.

KENNETH HELLER, an attorney admitted to practice

before the Courts of the State of New York, hereby affirms the

following as true under penalties of perjury.

This affirmation is submitted in support of plaintiff's motion

pursuant to CPLR § 3101 for a protective order vacating de-

fendants notice to take deposition upon oral questions and to

produce, and for other relief.

FACTS

This action is brought to recover money damages for a

longshoreman-checker, severely injured on Apri! 28, 1980, when

he slipped and fell into a mud hole while checking containers

located on property owned, operated and controlled by de-

fendant herein. At the time of his accident, plaintiff was em-

ployed by UNITED TERMINALS, INC., at Port Seatrain, Wee-

hawken, New Jersey.

Plaintiff, 36 years of age, has been totally disabled since the

date of his accident.

On July 8, 1983, a notice to take deposition upon oral ques-

tions and to produce was served upon counsel for plaintiff, return-

able August 25, 1983. Said notice is annexed hereto as Exhibit 1.

Plaintiffs demands that this notice to produce be vacated on

the following grounds:

B-3

ITEM #1

This is not an automobile accident, therefore Item #1

is inept;

ITEM #2

This information is available from the compensation

carrier and will be furnished to defendants once plain-

tiff has obtained it.

ITEM #43

Plaintiff's income and records are personal and are

not to be disclosed to the defendant.

The plaintiff as a longshoreman, is not a paid

employee but paid from a fund to which defendant,

as a shipowner, is a contributor. The fund is called

NYSA-ILA GAI FUND. The defendant being a

member of this fund has available to it plaintiff's en-

tire earnings records.

In view of the fact that an alternative means is pres-

ent and the defendant has failed to exhaust these

means to obtain these records this item should be

stricken. Furthermore, defendants are not entitled to

anything so privileged as income tax records.

ITEM #4

Plaintiff does not understand this demand

ITEM #5

This Item is incomprehensible

ITEM #6

Not only is this item incomprehensible it is an attack

on the entire system of discovery being a “fishing ex-

pedition”. Said item being over-broad places an un-

due burden upon the plaintiff and confronts the plain-

tiff with a task that he could not possibly accomplish.

B-4

The examination of the plaintiff by oral deposition

can not take place until issues of the Items to be pro-

duced at the examination before trial has been

disposed of. Further the areas of questioning with

regard to the Items of discovery and inspection are

objected to as being contrary to the civil rights of this

plaintiff. The other areas of interrogation anticipated

are objectionable within the confines of the Items

demanded for discovery and inspection.

WHEREFORE, it is respectfully requested that defendant's

notice to take deposition upon oral questions and to produce

should be stricken in its entirety.

Dated: New York, New York

July 13, 1983

KENNETH HELLER

’ —

C-1

SUPREME COURT OF THE STATE OF NEW YORK,

SPECIAL TERM PART IA, NEW YORK COUNTY

at the Courthouse thereof, 60 Centre Street, New York,

New York 10007.

Present: Hon. DAVID H. EDWARDS, JR. Justice.

Picinic

— against —

Seatrain Lines

The following papers numbered | to ____ read on this motion

Argued & Submitted. PAPERS NUMBERED

No 80 on Calendar of Aug. 8, 1983

Notice of Motion - Order to Show Cause - and Affidavits

Annexed

Answering Affidavit

Replying Affidavit

—___. Affidavit

—___. Affidavit

Pleadings - Exhibit

Stipulation - Referee’s Report - Minutes

Filed Papers

Filed August 16, 1983

County Clerk’s Office, New York

Upon the foregoing papers this motion by plaintiff to vacate

notice of deposition is denied. Plaintiff shall appear for examina-

tion at special Term Part 2 of the court on August 22, 1983 at

10:00 a.m. and shall produce relevant records. Requests for rul-

ings on objections shall be addressed to the justice presiding at

special Term Part 2.

Dated Aug. 8, 1983 /s/

TY

D-1

NOTICE OF MOTION

Index No.: 16200/83

Judge: Blyn

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY CORP.

and JACKSON TANKER CORP.

Defendant.

MOTION BY:

Defendants, SEATRAIN LINES, INC., SEATRAIN

REALTY CORP. and JACKSON TANKER CORP.

ACTION FOR:

Personal Injury

DATE AND TIME:

On Wednesday, June 17, 1987 at 2:00 P.M.

PLACE OF HEARING:

At the Courthouse located at 60 Centre Street, New

York, N.Y. 10007 I.A.S. Part 26, Room 232

D.2

ORAL ARGUMENT REQUESTED:

YES [X] NO[ ]

SUPPORTING PAPERS:

Pleadings, exhibits and the Affirmation of Attorney

JAMES J. FERETIC

Dated: May 29, 19°

RELIEF DEMANDED:

A) An Order pursuant to CPLR 3104 and Uniform

Rules § 202.12 for a Preliminary Conference and an

Order directing plaintiff to comply with defendants’

discovery demands.

B) Such other and further relief as this Court deems

just and proper.

SEVEN DAY NOTICE:

Pursuant to CPLR 2214(b) answering papers are to

be served at least 7 days prior to the return date of

this motion.

Dated: New York, New York

May 29, 1987

CALENDAR NO. 73658 - INDEX NO.: 16200/83

PRESENT: HON. ETHEL B. DANZIG Justice.

New York Supreme Court

County of New York

EE EEE

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., et al.,

Defendants.

The following papers numbered 1 to ____

read on this motion

this day. of 19

PAPERS NUMBERED

Notice of Motion and Affidavits Annexed

Order to Show Cause and Affidavits Annexed

Answering Affidavits

Replying Affidavits

Affidavits

Filed Papers (County Clerk’s Office)

Others

Upon the foregoing papers this motion is granted to the ex-

tent of marking this case off the calendar until the pending ap-

peal has been decided by the Appellate Division, First Depart-

ment. The case may then be restored to the calendar by plain-

tiff on ten days written nc ce to the defendant and to the court.

That portion of the motion seeking discovery is denied without

prejudice to renew in the proper Part after the appeal has been

decided.

Dated May 22, 1985 /s/

J.S.C.

F-]

INDEX NO 16200/83

AFFIRMATION OF COMPLIANCE WITH SUPREME

COURT RULE § 202.12(f)

SUPREME COURT OF THE STATE CF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY CORPORA-

TION, and JACKSON TANKER CORPORATION,

Defendants.

KENNETH HELLER, an attorney at law in the State of New

York, under penalty of perjury, hereby affirms:

That he is the attorney for the plaintiff, that he is familiar

with the facts herein, and that he files this Affirmation of Com-

pliance with Supreme Court Rule § 202.12(f) in order to file

the Note of Issue in this case.

This case was previously on the trial calendar under Calen-

dar number 73658, against defendant Jackson Tanker Corpora-

tion, only, upon its default.

Said default was vacated by the Appellate Division, First

Department, in an order dated February 4, 1986, and defen-

dant Jackson Tanker served its answer.

On May 19, 1986, affirmant served a Request for Preliminary

Conference upon defendants’ attorneys. The case was assigned,

but no preliminary conference has been held.

There are no outstanding orders resulting from any

preliminary conference to date, as a result of the recent

assignment.

ini

F.2

WHEREFORE, it is respectfully requested that plaintiff be

permitted to file his Note of Issue and Statement of Readiness.

Affirmed this 18th day

of June, 1986 /s/ Kenneth Heller

KENNETH HELLER

F-3

NOTE OF ISSUE

INDEX NO 16200/83

Name of Judge: BLYN

SUPREME COURT, NEW YORK COUNTY, N.Y.

MATE PICINIC,

Plaintiff (s)

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY CORPORA-

TION, and JACKSON TANKER CORPORATION,

Defendant(s)

NOTICE FOR TRIAL

K) Trial by jury demanded

K) Of all issues

C) Of issues specified below or attached hereto

OQ) Trial without jury

Filed by attorney for Plaintiff

Dated summons served April 20, 1983

Date service completed April 20, 1983

Date issue joined June 23, 1983 and Feb. 27, 1986

NATURE OF ACTION OR SPECIAL PROCEEDING

K) Tort: C) Motor vehicle negligence

() Medical malpractice

K) Other tort - Negligence

() Contract

() Contested matrimonial

C) Uncontested matrimonial

F-4

L) Tax certiorari

(J) Condemnation

() Other (not itemized above) specify

(} This action is brought as a class action

CL} This is a medical malpractice action: panel procedures

prescribed by court rules pursuant to Jud. § 148.a.

Li have been completed 1) have not been completed

Amount demanded $10,000,000.00

Other relief

Insurance carrier(s), if known: Travelers

Attorney(s) for Plaintiff(s) KENNETH HELLER, Esq.

Office & P.O. Address: 335 Broadway

New York, New York 10013

Phone No: (212) 962-6085

Attorney(s) for Defendant(s) Law Office of Raymond G. Lawlor

Office & P.O. Box Address: 80 John Street

New York, New York 10038

Phone No.: (212) 668-9210

NOTE: Clerk will not accept this note of issue unless accom-

panied by a certificate of readiness, or, in a medical malprac-

tice action, unless, where applicable, the certificate of readiness

previously has been filed and the panel procedure prescribed

by court rules pursuant to section 148-a of the Judiciary Law

have been completed.

F.5

CERTIFICATE OF READINESS FOR TRIAL

(Items 1-7 must be checked)

Completed Waived Not required

All pleadings served X

Bill of particulars served

Physical examinations completed

Medical reports exchanged

Appraisal reports exchanged

. Compliance with the Rules in matri-

monial actions (22 NYCRR 202.16) X

7. Discovery proceedings now known

to be necessary completed X

8. There ave no outstanding requests for discovery.

9. There has been a reasonable opportunity to complete the

foregoing proceedings.

10. There has been compliance with any order issued pursuant

to the Precalendar Rules (22 NYCRR 202.12).

ll. If a medical malpractice action, there has been compliance

with any order issued pursuant to 22 NYCRR 202.56.

12. The case is ready for trial.

Date: June 17, 1986 /s/ Kenneth Heller

KENNETH HELLER, ESQ.

Attorney(s) for Plaintiff

Office & P.O. Address 335 Broadway

New York City, N.Y. 10013

State of New York, County of New York ss: Lily Choung

being duly sworn, deposes and says that deponent is not a par-

ty to the action is over 18 years of age and resides at New York,

New York, on the 17th day of June 1986

Deponent served the within note of issue and certificate of

readiness on Law Office of Raymond G. Lawlor attorney(s) for

Defendant herein at his office at: 80 John Street, New York, NY

during his absence from said office

(a) by then and there leaving a true copy of the same with

his clerk: partner: person having charge of said office.

(b) and said office being closed, by depositing a true copy of

same, enclosed in a sealed wrapper directed to said attorney(s),

in the office letter drop or box.

Sworn to before me on June 1986

— ————

DE obo

mm

G-1l

Present: Hon. ARTHUR E. BLYN

Mate Picinic

— against —

Seatrain Lines

The following papers numbered 1 to ____ read on this motion

PAPERS NUMBERED

No ____ on Calendar of

Notiee of Motion - Order to Show Cause - and Affidavits

Annexed

Answering Affidavit

Replying Affidavit

________ Affidavit

_________ Affidavit

Pleadings - Exhibit

Stipulation - Referee’s Report - Minutes

Filed Papers

Upon the foregoing papers this motion to strike the note of

issue is granted, in accordance with the recommendation of the

Special Master annexed hereto.

Settle order.

Dated 12/16/86 /s/

J.S.C.

Briefs: Plaintiffs _._.. Defendant’s _____ Petitioner’s ___

Respondent’s ____ Relator’s ___

Briefs

County Clerk’s No 16200, 1983

Speci I Liber ______ Line 001, 19___

G-2

Special Master BYRON DRESNER

Date: 12/10/86

Motion Calendar No. (Cross Motion: Yes __._. No ~

Relief Requested: (Motion) To Strike Note of Issue

(Cross motion)

Personal ~ ‘Telephone __ Conference with Pitf.

Personal ~ ‘Telephone ___ Conference with Deft.

Motion Submitted Without Confer nee ,

Disposition:

Motion adjourned _____ (Date: )

Motion withdrawn _____ Cross motion withdrawn ____

Motion settled ___. Cross motion settled ___

Stipulation on record

Stipulation to be submitted

Motion submitted to Special Term Part I without recom-

mendation

Recommendation:

Motion granted ~ Cross motion granted ___

Motion denied ____ Cross motion denied ___ Other: __

Comments:

The motion to strike note of issue should be granted. No

preliminary conference was held prior to the filing of the

note of issue dated 6/17/86 although a demand for a pre-

liminary conference was made ‘y the plaintiff on 5/19/86.

Issue was not joined as to Def. Jackson Tanker Corp.

until Feb. 27, 1986 after a stay been in effect until the

G-3

App. Div. decision Feb. 4, 1986. The case had been marked off

the Calendar as a previous note of issue filed on Mar. 12, 1985,

to be restored on 10 days notice with the pending appeal to the

App. Division was decided. The defs. has not had a reasonable

opportunity to depose the Plaintiff contary to the Certificate

of Readiness. There is ev’ tence of Pre-Trial Order by the Court

under the Rules of this Court.

The case should be set down for a Preliminary Conference.

/s/Byron Dresner

Special Master

H-1

NOTICE OF MOTION

Index No.: 16200/83

Judge: Blyn

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY

CORP. and JACKSON TANKER CORP.

Defendant.

MOTION BY: Defendants, SEATRAIN LINES, INC.,

SEATRAIN REALTY CORP. and JACKSON TANKER CORP.

ACTION FOR: Personal Injury

DATE AND TIME: On Wednesday, June 17, 1987 at 2:00 P.M.

PLACE OF HEARING: At the Courthouse located at 60 Centre

Street, New York, N.Y. 10007 I1.A.S. Part 26, Room 232

ORAL AR\:UMENT REQUESTED: Yes

SUPPORTING PAPERS: Pleadings, exhibits and the Affirma-

tion of Attorneys JAMES J. FERETIC Dated: May 29, 1987

H-2

RELIEF DEMANDED:

A) An Order pursuant to CPLR 3104 and Uniform Rules

§ 202.12 for a Preliminary Conference and an Order directing

plaintiff to comply with defendants’ discovery demands.

B) Such other and further relief as this Court deems just and

proper.

SEVEN DAY NOTICE: Pursuant to CPLR 2214(b) answering

papers are to be served at least 7 days prior to the return date

of this motion

Dated: New York, New York

May 29, 1987

LAWLOR & CAULFIELD

Attorneys for Defendants

SEATRAIN LINES, INC.,

SEATRAIN REALTY CORP. and

JACKSON TANKER CORP.

Office & P.O. Address

80 John Street

New York, New York 10038

Tel. No. (212) 668-9210

TO: KENNETH HELLER, ESQ.

Attorney for Plaintiff

335 Broadway, Suite 613-14

New York, New York 10007

(212) 962-6085

GH:mj

830511

OPIDO89

H-3

AFFIRMATION OF JAMES J. FERETIC, ESQ.

IN SUPPORT OF MOTION DATED MAY 29, 1987

AFFIRMATION

Index No. 16200/83

Judge: Blyn

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY

CORP. and JACKSON TANKER CORP.,

Defendants.

JAMES J. FERETIC, an attorney duly licensed to practice

law before the Courts of the State of New York, affirms the

following under the penalties for perjury pursuant to CPLR

2106:

That I am associated with LAWLOR & CAULFIELD, at-

torneys for defendants. As the attorney assigned to the above

referenced matter, I am thoroughly familiar with the facts and

circumstances of this case.

This is an action for personal injuries, alleged to have arisen

from a trip and fall.

The motion herein is for the scheduling of a pre-trial con-

ference, at which the aid of the Court will be sought in super-

vising discovery. Defendants wish to obtain the exchange of

complete medical records, to schedule and conduct an oral

H-4

examination before trial, and physical and psychological ex-

aminations of plaintiff. A complete exchange of medical records

has not occurred. Neither a deposition nor a physical examina-

tion of plaintiff has been conducted heretofore. On informa-

tion and belief, plaintiff does not speak the English language.

Therefore, defendants additionally request that the specific

dialect of the plaintiff be disclosed, with sufficient notice to af-

ford defendants time to engage an interpreter prior to the time

of deposition.

I. MEDICAL RECORDS

Demand was made by defendants for the exchange of medical

records on February 20, 1986 (Exhibit A). No records were pro-

vided by plaintiff in response thereto, until March 11, 1987. At

that time a defaced copy was provided by plaintiff, with a notice

of availability for medical examination on April 1, 1987 (Ex-

hibit B). Defendants duly objected to this inadequacy by letter

to plaintiffs counsel (Exhibit C). Legible, but incomplete copies

of plaintiff's medical records were received in this office from

plaintiff's physician, Dr. Margolies, on April 8, 1987 (Exhibit

D). By letter to plaintiff's counsel, a procedure was suggested

for effecting the discovery necessary to prepare this case for trial

(Exhibit E). No response by plaintiff has been forth coming.

A review of the medical records obtained reveals that plain-

tiff was examined by several doctors other than the single physi-

cian for which an authorization to obtain medical records was

provided.

A list of such physicians, along which the dates wherein they

are listed in the records of Dr. Margolie are as follows. (A copy of

the records provided by Dr. Margolies is appended as Exhibit F.)

5-1-80 X-rays taken by Dr. A. Wasserman,

radiologist at J.C., N.J.

10-15-80 An unnamed medical examiner

disagreed with the course of treatment.

ne —

10-28-80

12-9-80

1-22-81

1-29-81

2-3-81

2-10-81

9-17-81

9-30-81

11-10-81

3-25-82

The records provided by Dr. Margolies are themselves in-

complete. Neither copies of reports of other doctors, apparently

received by him, were included nor was the letter he sent to “all

parties concerned” on January 29, 1981. The records are, evident-

ly, in the form of sequentially numbered index cards. No copy

of Card “7” was provided. On the front of Card “8” there is a

large portion which has been obliterated on the photocopy itself.

The back of Card “9” and the front of Card “10” were not

photocopied and submitted to our office. Moreover, a portion

of the back of Card “10” was obscured by a piece of paper stapled

H-5

Orthopedic examination by Dr.

Allegra.

Unnamed federal examiner disagreed

with course of treatment.

Phone conversation with Dr. Allegra’s

office.

Letter sent to unnamed parties with

copy of Dr. Allegra’s report.

Dr. Goodgold performed EMG at

N.Y.U. Medical School.

Findings by Dr. Goodgold.

CT Scan at Computed Tomography

Center, Rego Park performed on

7-29-81.

Report noted of Dr. Blackwell (?).

Examined by Labor Department or-

thopedist, Dr. James Halligus.

Consuitation with Dr. Blackwell on

neuropsychiatric matter.

to the card before photocopying.

H-6

It is quite clear that plaintiff has been less than forthcoming

in the provision of medical records for which demand was duly

made. The information necessary, even on which to make specific

demand for authorizations, is exclusively in the possession of

plaintiff. It is clear that at least nine and possibly more physi-

cians have been seen by plaintiff with respect to injuries claimed

in this action. Plaintiff has thus far acknowledged only one, for

which defendants still do not have complete records. The defen-

dants therefore request the Court’s assistance in obtaining com-

plete medical records.

Il. EXAMINATION BEFORE TRIAL

Plaintiff was noticed by defendants for a deposition on July

8, 1983 (Exhibit G). Defendant moved for a protective order

vacating the notice. Justice Edwards denied it in its entirety.

(Exhibit H) Plaintiff moved to reargue, yet failed to appear on

the scheduled date. At that time defendant Jackson Tanker was

appealing a default judgment entered against it. Plaintiff moved

to stay all proceedings in the action against the remaining de-

fendants Plaintiff theorized that defendant Jackson Tanker was

entitled to no discovery in an inquest on damages and that allow-

ing the remaining defendants to continue discovery would pro-

vide information to Jackson Tanker. A stay of all proceedings

was granted pending the outcome of the appeal. (See Affirma-

tion of attorney John R. Seybert dated April 17, 1985 and Orders

of Justice Danzig dated April 22, 1985, and of Justice Wright

_ dated August 20, 1985, and October 14, 1985, appended as Ex-

hibit I.)

Parallel to the above proceedings, plaintiff's counsel appeared

before Judge Ryan, of the Bankruptcy Court for the Southern

District of New York, to petition for a lifting of the bar order

as against defendants Seatrain Lines and Seatrain Realty. Both

were in Chapter 1] proceedings. Judge Ryan requested that

plaintiff be produced for examination of the issue of excusable

neglect of the bar order. Plaintiff's counsel refused to do so. (See

minutes for January 27, 1984, and March 2, 1984, appended

as Exhibit J.)

H-7

On February 4, 1986, the default judgment against defend-

ant Jackson Tanker was vacated by the Appellate Division First

Department (497 N.Y.S.2d 924).

On May 19, 1986, plaintiff requested a preliminary con-

ference. Without such conference being held, on June 18, 1986,

plaintiff requested this Court’s permission to file his Note of Issue,

affirming that a bill of particulars, physical examination, ex-

change of medical reports and other discovery proceedings were

not required (Exhibit K). On June 26, 1986, plaintiff served a

bill of particulars (Exhibit L). Defendants opposed filing the

Note of Issue and, after several adgpurnments, this Court granted

defendants’ motion, accepting the recommendation of Special

Master Byron Dresner (Exhibit M). Part of that recommenda-

tion was that a preliminary conference be held.

On December 19, 1986, in a telephone conversation between

Susan Herman, Esq., of Mr. Heller's office, and myself and David

Heller, of this office, depositions of all parties were scheduled

for January 14, 1987. Plaintiff's counsel agreed to provide this

office with the name of the language spoken by plaintiff. Said

information was not provided. The depositions were adjourned

without date.

It is quite clear from the long history of this case that plain-

tiffs counsel has no intention of voluntarily producing the plain-

tiff for deposition at any time or place. If any deposition is to

occur, defendants respectfully submit, it will only be by Order

of this Court for a time and date certain in a room of this

Courthouse.

Ill. MEDICAL EXAMINATION

In paragraph “6” of plaintiff's bill of particulars (Exhibit L),

it is claimed that “plaintiff sustained an injury to his entire

body...” Generalities are provided for particular injuries only

as “[a]mong the injuries sustained... ” In addition to physical

injuries there is a claim of “post-traumatic neurosis in the form

of neurotic depression with anxiety. . ” Defendants could not

H-8

possibly have knowledge as to the type of physical examination

necessary nor whether a psychological examination is also war-

ranted. The bill was received more than three years following

commencement of this suit. No medical records were provided

by plaintiff until this year. As detailed above, the exchange must

be completed and a deposition of plaintiff conducted before any

physical examination would have a basis on which to provide

a meaningful evaluation.

On the basis of the events herein, it would be naive to believe

that the plaintiff will be produced for examination except under

an Order by this Court. Defendants therefore desire that a

schedule for completion of discovery be fixed by this Court,

which will include dates certain for a physical and psychological

examination of the plaintiff. The latter may be waived if counsel

will stipulate on the record that psychological injuries are not

claimed.

CONCLUSION

This action has a history of time consuming motions and ap-

peals. The only results have been delays and increased costs to

plaintiff, defendants and the Court. After nearly four years of

litigation, and nearly seven years after the date of the alleged

injuries, defendants still lack any meaningful knowledge of the

basis of plaintiffs claim. Plaintiff is no nearer a trial on his claim.

The lack of cooperation evinced by plaintiff's counsel is the sole

cause of this delay. Defendants are eager and willing to pro-

ceed to trial in an orderly fashion. However, it has become clear

that this is not possible without the intervention of this Court.

_ Wherefore, defendants respectfully reques¢ that this Court

issue an Order directing plaintiff to provide an exchange of all

medical records and/or authorizations whereby defendants may

obtain such records; that after allowing a reasonable time for

the foregoing that plaintiff be ordered to appear for a deposi-

tion on a date to be fixed by this Court which shall not be ad-

journed in a room in this Courthouse with ample notice given

prior thereto of the language spoken by plaintiff; that plaintiff

H-9

be ordered to appear on date(s) to be fixed by this Court which

shall not be adjourned for physical and psychological examina-

tions; and for such other and further relief as this Court may

deem just and proper.

Dated: New York, New York

May 29, 1987

JAMES J. FERETIC

I-1

INDEX NO 16200/83

NOTICE OF CROSS-MOTION TO PRECLUDE AND

TERMINATE DISCOVERY

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY CORP., and

JACKSON TANKER CORP.,

Defendants.

SIRS:

PLEASE TAKE NOTICE that upon the annexed Affirmation

of Kenneth Heller, Esq., affirmed the lst day of September,

1987, upon the annexed exhibits and upon all the previous

pleadings and proceedings heretofore had herein, the under-

signed will cross-move before this Court at the Supreme Court-

house, 60 Centre Street, New York, New York 10007, before

Justice Arthur Blyn, Room 212, on the 9th day of September,

1987, at 2:00 PM in the afternoon, or as soon thereafter as counsel

can be heard, for an Order striking all defendants’ discovery

demands, terminating discovery in this action, and granting such

other, further, and different relief as this Court deems just and

proper.

1-2

Dated: September 1, 1987

New York, New York

Yours, etc.

KENNETH HELLER, ESQ.

Attorney for Plaintiff

335 Broadway, Room 614

New York, New York 10013

212-962-6085

To: LAWLOR & CAULFIELD

Attorneys for Defendants

80 John Street

New York, New York 10038

212-668-9210

I-3

INDEX NO. 16200/83

AFFIRMATION IN SUPPORT OF NOTICE OF CROSS-

MOTION TO PRECLUDE AND TERMINATE DISCOVERY

AND IN OPPOSITION TO DEFENDANTS’ MOTION FOR

PRELIMINARY CONFERENCE AND DISCOVERY

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

a msinnnintioounneseaaeonanonne X

MATE PICINIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY CORP.,

and JACKSON TANKER CORP.,

Defendants.

I enicenitnetnmonencniiotinaninnene xX

KENNETH HELLER, an attorney-at-law in the State of New

York, under penalty of perjury, hereby affirms the following:

That he is the attorney for the plaintiff, that he is familiar

with the facts herein and all previous pleadings and proceedings,

and that he submits this Affirmation in Support of Plaintiff's

Cross-Motion to Strike all pending defendants’ discovery

demands, to preclude defendants from further discovery in this

action, to terminate all discovery by defendants in this action,

and for other relief. Plaintiff submits this Affirmation in Op-

position to Defendants’ Motion for a Preliminary Conference

and for an Order directing plaintiff to comply with defendants’

discovery demands.

1.4

Defendants, at this late date, following service of a Notice

of Availability with an enclosed authorization of the only treating

physician who has treated the plaintiff, seek to cast aside the

rules of this Court, 22 NYCRR Sec. 202.17 and CPLR Sec. 3121;

and having defaulted in compliance with the Notice of

Availability; having defaulted in making any application to strike

the Notice of Availability; having defaulted in objecting to the

Notice of Availability; and otherwise having flaunted the rule

requiring compliance with a Notice of Availability, now seek

to completely avoid their multiple defaults, and request that

this Court set aside all that has occurred prior thereto and grant

them permission to subject the plaintiff to a physical examina-

tion and to obtain the records of treating doctors, who are not

available in this jurisdiction.

The defendants herein are past masters at extricating

themselves from defaults. These defendants have exercised their

only ability, in this case: The ability to extricate themselves from

a common strand of constant defaults:

1. They have defaulted in answering the Complaint,

which occasioned the Orders of Judge Wright and

an Appeal.

2. They have defaulted on several occasions in answer-

ing the Note of Issue, which occasioned several

motions to this Court that still have not been

concluded.

3. For the third time, they have exhibited their only

consistency — an additional default.

. This Court should be overly fatigued at continuing to rescue

defendants from the defaults.

A Notice of Availability with the annexed authorization was

served upon them (Exhibit #1).

Defendant’s Motion, that was brought on returnable June 17,

1987, was long after the period required to respond to the Notice

1-5

of Availability. It appears that the defendant finally realized

they had defaulted in this case for the third time.

There should be a limit to this Court’s patience in rescuing

inept and incompetent defendants.

LAW

Defendants’ abject failure to move or to obtain a stipulation

to change the date of the Notice of Availability is an absolute

waiver of the right to a physical examination of the plaintiff,

pursuant to the provisions of 22 NYCRR Sec. 202.17(a).

The rule in the First Department is espoused by the Appellate

Division in Palmieri v. Romat Realty Corporation et al., 45 Ad2d

948 (lst Dept 1974), at p. 949:

This argument is of no avail. Plaintiffs served a notice

of availability for physical examination on January

20, 1971, over one year prior to the action having been

stricken from the calendar. Subdivision (a) of section

660.11 of the rules of the Supreme Court (22 NYCRR

660.11[a]) requires that the examination be held not

later than 30 nor more than 40 days after service, ab-

sent a stipulation. No stipulation having been entered

into, defendants are deemed to have waived the ex-

amination (see Delgado v. Fogle, 32 AD2d 85).

Concur — Markewich, J.P., Murphy, Lupiano, Tilzer

& Lane, JJ.

The Second Department rule, identical to our own, in

Delgado v. Fogle, 32 AD2d 85 (2 Dept 1969), states that there

is an affirmative duty and obligation on the defendant to react;

and a failure to respond, either by motion or by obtaining a

stipulation, is a waiver of ail rights to obtain a physical

examination.

1-6

In Delgado, at pp. 86-87, the Court stated:

Neither the defendants’ attorneys nor the physician

they designated appeared to conduct the examination

at the time and place specified in the plaintiffs’ notice.

By notice of motion dated May 17, 1968, the defend-

ants moved for an order directing the plaintiffs to sub-

mit to a physical examination. The motion was

granted and the plaintiffs appealed... . Rule J is clear

in terms and casts an affirmative duty upon a defend-

ant served with a notice pursuant thereto either to

proceed with the examination at the time and place

specified in the notice or, in the alternative, to move

to modify or vacate the notice within five days after

receipt. The recipient of such a notice is neither free

to ignore it with impunity nor free to treat it as

nothing more than a suggested date. (Emphasis

added.)

Accordingly, if, at the time of receipt of the notice,

it appears to the recipient that the time or place

specified therein is not mutually convenient, the reci-

pient must move, in accordance with rule I, for a

modification of the notice, unless, of course, the par-

ties stipulate to an adjourned date. In the absence of

such a modification or stipulation, a defendant who

fails to proceed in accordance with the notice is in

default and will be deemed to have waived the right

to conduct such a physical examination in the future.

Such a defendant may be relieved of the default only

upon demonstrating the existence of a reasonable ex-

cuse therefor. (Emphasis added.)

In 1981, in Dingee v. Dominick, 85 AD2d 593 (2 Dept 1981),

Delgado was again affirmed:

Having failed to properly respond to two notices of

availability for physical examination, served by plain-

tiffs in January and July, 1979, pursuant to 22 NYCRR

1.7

672.1, or to request such examination in October, 1979,

when plaintiffs served a supplemental bill of par-

ticulars mentioning additional injuries, and instead

seeking to examine the injured plaintiff only after

plaintiffs served their note of issue and statement of

readiness in July, 1980, defendants have waived their

right to a physical examination (see 22 NYCRR 672.1;

672.7; Delgado v. Fogle, 32 Ad2d 85; Juett v. Paesani,

19 AD2d 726). (Emphasis added.)

In 1983, in DeChiaro v. Rendell, 95 AD2d 792 (2 Dept 1983),

the court continued to uphold the Notice of Availability rule

cited in Delgado:

Section 672.1 of the rules of this court (22 NYCRR

672.1) requires that a notice of availability for a

physical examination be responded to within five days

of service. This court has held that, absent a

reasonable excuse, noncompliance by a defendant with

this rule will effectively waive that defendant's right

to a physical examination of the injured plaintiff

(Delgado v. Fogle, 32 AD2d 85). (Emphasis added.)

The constant thread woven throughout the fabric of all of

the authorities cited in support of this Cross-Motion to Strike

Defendant’s Demand for Physical Examination, is that the ab-

ject failure of the defendant to respond to the notice of medical

availability resulted in the Court’s finding that the defendant

had waived their right to a physical examination.

Similarly, it is anticipated that this defendant will attempt

to offer some lame excuse, but this Court should grow fatigued

over persistent excuses as a vehicle to overcome default.

This Court should no longer pull defendant’s overdone

chestnuts out of the fire.

Defendant seeks to ramble all over the State of New Jersey to

obtain records of examining physicians whom plaintiff will not

1-8

call at the trial. The authorities are clear and direct. When plain-

tiff commits himself not to call an examining physician, then

there is no obligation to furnish authorizations to anyone to

compel the production of reports which cannot be introduced

at trial.

In the case of Vaupel v. Church Charity Foundation of Long

Island, 49 AD2d 932 (2 Dept 1975), the Court specifically

discussed the identical fact pattern:

Pursuant to a previous order, plaintiffs have already

submitted to this defendant the report of the only

physician that plaintiffs intend to call at the trial in

support of the claim for psychiatric injuries. Our rules

of practice provide that “no party shall be permitted

to offer any evidence of injuries or conditions not set

forth or put in issue in the respective medical reports

previously exchanged, nor will the court hear the

testimony of any physician whose medical reports have

not been served.” (22 NYCRR 672.8). Although plain-

tiffs consulted other physicians, the reports of those

physicians were not furnished to this defendant. Con-

sequently, as a penalty for the failure to furnish the

reports of the additional treating physicians, plain-

tiffs are precluded from utilizing their testimony, or

the results of their examinations, at the trial. We think

this penalty is sufficient to insure a proper disclosure,

and results in a fair balance of the interests of plain-

tiffs and this defendant.

THIS COURT HAS THE OBLIGATION TO PROTECT THE

RIGHTS OF A MARITIME WORKER

This plaintiff, being a maritime worker, is considered entitled

to be protected as a ward of admiralty. See Harden v. Gordon,

F. Cas. No. 6,047 (CC Me 1823), page 480 at 482:

Seamen are by the peculiarity of their lives liable to

sudden sickness from change of climate, exposure to

1-9

perils, and exhausting labour. They are generally poor

and friendless, and acquire habits of gross indulgence,

carelessness, and improvidence. If some provision be

not made for them in sickness at the expense of the

ship, they must often in foreign ports suffer the ac-

cumulated evils of disease, and poverty, and sometimes

perish from the want of suitable nourishment. Their

common earnings in many instances are wholly in-

adequate to provide for the expenses of sickness; and

if liable to be so applied, the great motives for good

behavior might be ordinarily taken away by pledg-

ing their future as well as past wages for the redemp-

tion of the debt. In many voyages, particularly those

to the West Indies, the whole wages are often insuffi-

cient to meet the expenses occasioned by the perilous

diseases of those insalubrious climates. On the other

hand, if these expenses are a charge upon the ship,

the interest of the owner will be immediately con-

nected with that of the seamen. The master will watch

over their health with vigilance and fidelity. He will

take the best methods, as well to prevent diseases, as

to ensure a speedy recovery from them. He will never

be tempted to abandon the sick to their forlorn fate;

but his duty, combining with the interest of his owner,

will lead him to succor their distress, and shed a cheer-

ing kindness over the anxious hours of suffering and

despondency. Beyond this, is the great public policy

of preserving this important class of citizens for the

commercial service and maritime defence of the na-

tion. Every act of legislation which secures their

healths, increases their comforts, and administers to

their infirmities, binds them more strongly to their

country; and the parental law, which relieves them

in sickness by fastening their interests to the ship, is

as wise in policy, as it is just in obligation. Even the

merchant himself derives an ultimate benefit from

what may seem at first an onerous charge. It en-

courages seamen to engage in perilous voyages with

more promptitude, and at lower wages. It diminishes

I-10

the temptation to plunderage upon the approach of

sickness; and urges the seamen to encounter hazards

in the ship’s service, from which they might otherwise

be disposed to withdraw. It would therefore be a mat-

ter of regret to find incorporated into the common

law a doctrine at variance with that, which seems so

generally to have received the approbation of con-

tinental Europe. No evidence of such a variance is pro-

duced; and I am not bold enough to desert the steady

light of maritime jurisprudence for the more doubt-

ful guide of general reasoning.

ALL MARITIME WORKERS ARE PROTECTED

BY THE AUTHORITY OF HARDIN V. GORDEN

In Seas Shipping Co. v. Sieracki, 328 U.S. 85, at p. 90:

Petitioner insists, however, that the obligation flows

from, and is circumscribed by the existence of, the con-

tract between the owner of the vessel and the seaman.

Accordingly, since there was no such contract here,

it says respondent cannot recover. Respondent is equal-

ly insistent that the owner cannot slough off liability

to those who do the vessel’s work by bringing an in-

termediary contracting employer between himself and

those workers. In respondent's view the liability is an

incident of the maritime service rendered, not mere-

ly of the immediate contractual relation of employ-

ment, and has its roots in the risks that service places

upon maritime workers and in the policy of the law

to secure them indemnity against such hazards.

This Court has an obligation finally to protect this maritime

worker.

Annexed is a list of defendants’ defaults (Exhibits #2).

I-1]

WHEREFORE, it is respectfully requested that this Court

grant plaintiff's Cross-Motion in all respects, deny defendants’

Motion in all respects, and grant such other, further, and dif-

ferent relief as this Court deems just and proper.

Affirmed this Ist

day of September, 1987 KENNETH HELLER

j-l

PRELIMINARY CONFERENCE ORDER

PURSUANT TO PART 202 OF THE UNIFORM CIVIL RULES

FOR THE SUPREME COURT

NEW YORK COUNTY

INDIVIDUAL ASSIGNMENT PART 26

PICINIC

PLAINTIFF(S)

AGAINST

SEATRAIN LINES

DEFENDANT(S)

INDEX NUMBER 16200/83

CONFERENCE NUMBER

CONFERENCE DATE 12/1/87

APPEARANCES

PLAINTIFF(S) K. HELLER

DEFENDANT(S) JJ. McGRATH

I. INSURANCE COVERAGE:

Travelers - 500,000

F illegible 1,000,000

II. BILL OF PARTICULARS:

4. BILL OF PARTICULARS FOR AFFIRMATIVE

DEFENSES TO BE SERVED. SUBMITTED.

J-2

III. MEDICAL REPORTS AND HOSPITAL AUTHORIZA-

TIONS:

1. FURNISHED EXCEPT FOR CAT SCAN

AUTHORIZATION TO BE PRODUCED BY PLAINTIFF

FOR CAT SCAN TAKEN 7/20/81 BY COMPUTED

TOMOGRAPHY CENTER, REGO PARK, NY, FOR DR.

TURGOLD ENG 7/2/81 TO BE SERVED WITHIN 45 DAYS.

IV. PHYSICAL EXAMINATION: (OTHER THAN

TRANSIT)

1(C) EXAMINATION OF PLAINTIFF TO BE HELD

WITHIN 45 DAYS OF PLAINTIFF'S EBT EXAM. BY OR-

THOPEDIST AT DEFENDANT’S OFFICE EXAM BY

NEUROLOGIST AND PSYCHIATRIST TO TAKE PLACE AT

PLAINTIFF'S ATTORNEY’S OFFICE.

2(B). COPY OF PHYSICIAN’S REPORT TO BE FUR-

NISHED TO PLAINTIFF WITHIN 30 DAYS OF

EXAMINATION.

EXAMINATION BEFORE TRIAL:

1. PLAINTIFF DEFENDANTS

2. TO BE HELD ON FEBRUARY 10, 1988 AT 10:00 A.M.

COURTHOUSE AT 60 CENTRE STREET. DEFENDANT TO

FOLLOW PLAINTIFF DEFENDANT TO PRODUCE PER-

SON WITH KNOWLEDGE OF FACTS.

OTHER DISCLOSURE:

4. ALL PARTIES RESERVE RIGHT TO SERVE NOTICE

OF DISCOVERY AND INSPECTION AND DEMAND FOR

AUTHORIZATION.

5. TO BE COMPLETED

J-3

IMPLEADER ACTIONS:

1(B) TO BE COMPLETED WITHIN 60 DAYS AFTER

COMPLETION OF EBT’S

PREFERENCES:

(A) 3403(A) CPLR GRANTED

ADDITIONAL DIRECTIVES:

2. SEE ATTACHED PAGE FOR ADDITIONAL

DIRECTIVES.

PLAINTIFF IS DIRECTED TO FILE A NOTE OF ISSUE

ON OR BEFORE JULY 31, 1988.

WHEN FILING THE NOTE OF ISSUE AND CER-

TIFICATE OF READINESS THE FILING PARTY SHALL

SERVE A COPY OF THE ORDER, TOGETHER WITH AN

AFFIRMATION STATING COMPLIANCE WITH ALL

DIRECTIVES OF THIS ORDER AND AFFIDAVIT OF SER-

VICE ON THE TRIAL CLERK (ROOM 158) AND ALL PAR-

TIES IN THE EVENT OF NON-COMPLIANCE THIS OR

OTHER SANCTIONS MAY BE IMPOSED.

THIS CONSTITUTES THE DECISION AND ORDER OF

THE COURT

DATED: 12/1/88

ENTER: /s/

J.S.C.

ADDITIONAL DIRECTIVES: THIS ORDER IS NOT

ENTERED BY STIPULATION AND IS OVER THE OBJEC-

TION OF PLAINTIFF'S COUNSEL. THE PARTIES HAVE

THE RIGHT TO TAKE AN APPEAL FROM THIS ORDER.

/s/

J.S.C.

K-1

ORDER DATED AUGUST 31, 1989

At a term of the Appellate Division of the Supreme Court

herein and for the First judicial Department in the

County of New York, on August 31, 1989

Present: Hon. John Carro Justice Presiding

Sidney H. Asch

Richard H. Wallach

Israel Rubin Justices

Mate Picinic,

Plaintiff-Appellant,

against

Seatrain Lines, Inc., Seatrain Realty M-3532

Corp., and Jackson Tanker Corp.,

Defendants-Respondents.

Defendants-respondents having moved this Court for an order

dismissing plaintiff's appeals from an order of the Supreme

Court, New York County, entered on December 3, 1987, and

from an order of said court entered on June 6, 1988,

Now, upon reading and filing the papers with respect to the

motion, and due deliberation having been had thereon,

It is ordered that the motion to dismiss plaintiff's appeals be

and hereby is granted, with $100 costs.

ENTER:

FRANCIS X. GALDI

Clerk

Ll

SUPREME COURT : NEW YORK COUNTY

CIVIL TERM

IAS : PART 30

MATE PICNIC,

Plaintiff,

— against —

SEATRAIN LINES, INC., SEATRAIN REALTY

CORPORATION AND JACKSON TANKER CORPORATION,

Defendants.

Index No. 16200/83

HELEN E. FREEDMAN, J.:

Plaintiff and defendants move and cross move alternatively

to strike each other’s pleadings pursuant to CPLR §3126(3) for

failure to comply with court orders.

~ swt

—

This is an action for personal injuries allegedly sustained by

the plaintiff, a longshoreman, while unloading cargo on defen-

dants’ property in April 1980. Since the action was commenced

in 1983, virtually no discovery has taken place. Prior to 1987,

motion practice by both sides and the bankruptcy by one of the

defendants delayed discovery.

In a December 1987 preliminary conference, Justice Arthur

Blyn ordered plaintiff to supply CT Scans, appear for physical

and psychiatric examinations and submit to examinations before

trial. Pursuant to this order, discovery was to be completed

within sixty (60) days and a note of issue filed by July 31, 1988.

Plaintiff's attorney served a notice for the EBT, but did not agree

to arrange for an interpreter familiar with plaintiff's Yugoslavian

dialect. Since the EBT could not be conducted without such

L-2

an interpreter, it was never held. Each time defendants suggested

the name of an employee to ask to appear for a deposition, plain-

tiff rejected the employee as unsuitable. When defendants did

not agree to plaintiff's unilateral offer to appear for a physical

examination prior to the EBTs, plaintiff deemed the physical

examination waived.

After Justice Blyn’s retirement, the case was reassigned to this

Court which granted plaintiff a stay of discovery until September

1, 1988 so that plaintiff could perfect his appeal of Justice Blyn’s

order. Plaintiff then made a recusal motion which was denied

and subsequently appealed. Neither the appeal of Justice Blyn’s

order nor the appeal of the recusal motion was ever perfected

and to date, discovery remains at a standstill:

Section 3126(3) of the CPLR provides in part that if a party

refuses to obey an order for disclosure, the court “may make such

orders with regard to the failure or refusal as are just among

them: .. .dismissing an action or any part thereof... .”. Plain-

tiffs attorney’s course of conduct in this case has frustrated the

efforts of both the Court to move the case to trial and the defen-

dant to conduct discovery. His series of unperfected appeals of

each court order and requests for adjournments and stays

resulted in numerous delays. He has shown both the defendants

and Court an unwillingness to cooperate.

The alleged accident occurred nine (9) years ago and no EBTs

of fact witnesses or the plaintiff have been taken. It may be im-

possible for defendant to even locate fact witnesses at this point.

Even if such witnesses would be found, their recollection of the

incident would be hazy. Where the defendants have been severely

prejudiced by the dilatory tactics of the plaintiff, the complaint

should be dismissed (see Zletz v. Wetanson, 67 NY2d 71, 490

NE2d 852, 499 NYA2d 933 [1986]).

' On September 6, 1989, the Appellate Division dismissed all of plaintiff's

appeals.

L-3

However, it must be acknowledged that some of the delays

were occasioned either by the bankruptcy of defendants or by

appeals taken by defendants from an entry of a default judg-

ment against them. For that reason, the Court will give plain-

tiffs one more chance to comply with discovery orders on con-

dition that $1,000 be paid to defendants’ law firm on or before

October 16, 1989.

Additionally plaintiff shall appear for an EBT on or before

October 16, 1989 with a Yugoslavian interpreter to be paid for

by defendants and CT Scans shall be furnished before that date.

At least, one physical examination shall be conducted on or

before October 23, 1989 with the others to be completed by

November 15, 1989. The discovery shall be completed by

December 31, 1989 and the matter shall be placed on the trial

calendar by February 28, 1990. Failure to comply with any of

the above directions shall result in the striking of the complaint

and dismissal of the action.

The foregoing constitutes the decision and order of the court.

Dated: September 7, 1989

/s/_ H.E.F.

j. $..C.

M-1

SUPREME COURT OF THE STATE OF NEW YORK -

NEW YORK COUNTY

Part 30

PRESENT: Hon. Helen E. Freedman, Justice

Mate Picinic,

— against —

Seatrain Lines, Inc., etc.

Index Number 16200/8

MOTION DATE 10/20/89

MOTION SEQ. NO. 007

TRIAL CAL. NO. 6 on 11/3

The following papers numbers | to 1] read on this motion to

REARGUMENT

Notice of Motion/Order to Show PAPERS NUMBERED

Cause - Affidavits - Exhibits 1-4 &

Sew Y-Motion 1-4

Answering Affidavits - Exhibits

A&B&Sew 5-8

Replying Affidavits 9-1]

Upon the foregoing papers it is ordered that this motion by plain-

tiff to reargue this court’s decision of September 7, 1989 is denied

and the defendants cross motion to dismiss the complaint with

prejudice is granted. On September 7, 1989, this court ordered

that the parties commence discovery and set up a schedule for

all to follow. Rather than adhere to the schedule, plaintiff waited

until the court ordered dates had passed and then moved to

reargue the decision. Since the September 7 decision clearly

states that failure to comply with the new discovery schedule

will result in dismissal, the complaint is now dismissed. The

foregoing constitutes the decision and order of the court.

Dated 11/16/89 /s/ HEF

J.S.C.

N-]

Kupferman, J.P., Sullivan, Milonas, Rubin, JJ.

41358 Mate Picinic,

Plaintiff-Appellant,

-against-

Seatrain Lines, Inc., et al.,

Defendants-Respondents.

Order, Supreme Court, New York County (Helen Freedman,

J.), entered November 16, 1989, which, inter alia, granted de-

fendants’ motion to dismiss the complaint pursuant to CPLR

3126, unanimously affirmed, without costs.

The complaint in this negligence action arising out of an in-

jury sustained by plaintiff, a longshoreman-checker, on April

28, 1980, while he was working at Port Seatrain in Weehawken,

New Jersey, was dismissed upon plaintiff's failure to comply with

court-ordered discovery and after plaintiff had been given cre

final opportunity to comply with defendants’ discovery requests.

The record amply supports the IAS court’s determination that

plaintiff had frustrated defendants’ attempts to conduct

discovery and disobeyed its September 7, 1989 conditional order

of dismissal, which plaintiff had not appealed. Instead of adher-

ing to the court-ordered schedule directing him to submit to an

examination before trial with an interpreter, provide CT scans

and appear for a physical examination, plaintiff waited until

some of the court-ordered dates had passed and then sought

reargument. Since plaintiff was well aware of the terms of the

conditional order of dismissal, and no satisfactory excuse has

been proferred for his non-compliance, dismissal of the com-

plaint was proper. (Zletz v. Wetanson, 67 NY2d 711, 713). We

note that since the commencement of this action in 1983, almost

no discovery has taken place.

We have examined plaintiff's other contentions and find them

to be without merit.

M-4332 & M-4441 Mate Picnic v. Seatrain Lines, Inc., et al.

Motion to file oversize reply brief granted.

Cross-motion to strike appellant’s brief and for other relief

granted only to the extent of striking material not properly before

the Court and otherwise denied.

N-2

THIS CONSTITUTES THE DECISION AND ORDER OF

THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT

ENTERED: January 8, 1991

s/ Francis X. Galdi

Cierk