Sackas v. Hulmes , 456 N.Y.S.2d 165 ( 1982 )

Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered March 16, 1982 in Columbia County, which dismissed with prejudice plaintiff’s complaint and granted leave to defendant to renew that part of her motion seeking a default judgment against plaintiff on her counterclaim. In an action commenced by plaintiff to recover money allegedly loaned to defendant, defendant, after service of an answer containing a counterclaim and a reply, obtained an order directing plaintiff to appear at an examination before trial. Plaintiff also served a notice to take the deposition of defendant at the same time. At the appointed time and place, defendant, a school teacher, her counsel and a court stenographer appeared but plaintiff did not. Upon being advised of the order to appear at the examination, plaintiff told his lawyer, “I feel I cannot receive a fair trial in New York State”, and failed to appear. Moreover, plaintiff’s attorney, whose office was located only about a block and a half from the courthouse where the examinations were to be conducted, also failed to appear although he had cross-noticed to examine defendant who was present from out of town. When he was reached by phone some 10 minutes after the scheduled starting time, he merely advised defendant’s attorney through his secretary that he was with a client and was not coming to the examination. Upon these facts we cannot say Special Term abused its discretion in making the order from which plaintiff now appeals (see Sony Corp. of Amer. v Savemart, Inc., 59 AD2d 676, 677). The order of Special Term should be affirmed. Order affirmed, with costs. Sweeney, J. P., Main, Mikoll, Weiss and Levine, JJ., concur.