Kilcoin v. Sunny Countryman ( 1958 )

Isadore Bookstein, J.

If ever a case was entitled to a preference, in the interests of justice, this case is it.

Plaintiffs have tied up the property of defendant, Sunny Countryman, if the property is hers, by the simple expedient and ex parte act of filing a lis pendens in this action two years ago.

At the April 1958 Term, plaintiffs refused to proceed to trial before Mr. Justice Taylor, without an examination before trial, for which a motion was then pending before Mr. Justice Eager in the Ninth District. After Justice Eager decided the motion, plaintiffs ’ attorney failed to submit an order for the examination and defendants’ attorneys finally submitted one, which was signed by Justice Eager on May 17, 1958, directing defendant, Sunny Countryman, to appear for examination at the courthouse at Monticello, New York, on May 26, 1958, at 11:30 a.m. On that day she appeared ready for examination, in accordance with said order. Plaintiffs’ attorney then and there appeared with counsel and requested an adjournment until May 29, 1958, at 11:00 a.m., which request attorneys for defendants finally granted.

On May 29, 1958, at 11:00 a.m. defendant again appeared at the appointed hour. Plaintiffs’ attorney did not appear. Instead, he telephoned to defendants’ attorneys that he was at or near Binghamton and had obtained an order from a Justice in the Sixth District, staying the examination before trial.

That procedure is beyond comprehension. Why plaintiffs’ attorney should seek to have a Justice in the Sixth District stay Justice Hamm from proceeding with the examination for which he himself had moved is beyond my power to understand.

In view of the stay, the examination was adjourned to Special Term at Kingston, June 5, 1958, before Mr. Justice Hamm.

On June 2, 1958 the Justice in the Sixth District vacated his own order staying the examination.

On June 5,1958 defendant Sunny Countryman appeared with her attorneys at Special Term in Kingston ready to submit to examination. Plaintiffs’ attorney again was not ready to proceed, claiming he was unable to proceed, because he did not have certain records. He then consented that the examination be set down peremptorily against plaintiffs before Mr. Justice Deckelman on June 24,1958, at 11:00 a.m.

Without defendants’ fault such examination was not held on that day or since.

As a result Mr. Justice Deckelmax finally made an order on July 7, 1958 which among other things provided: “That the failure to conduct the examination before trial of said defendants on the part of the plaintiffs shall in no way prejudice the defendants insofar as the note of issue or place on the general calendar is concerned, nor shall it in any way prejudice the defendants with respect to any motion or proceedings relative to a preference or early trial and disposition of the issues involved or any other proceedings which may be taken on the part of the defendants.”

All summer has gone by and the examination has not been held.

In the meantime, by reason, among other things, of the Us pendens on file, defendant Sunny Countryman has been unable to meet tax payments and mortgage payments and is threatened with foreclosure.

Plaintiffs oppose this motion because the examination for which they obtained an order has not been held. The failure to hold it is due to the deliberate act of plaintiffs in obtaining a stay and failure to proceed at any and all of the times ordered by the court. Plaintiffs now seek to delay trial until the April 1959 Equity Term of this court. The fact that the October 1958 Term is not a designated Equity Term does not preclude an equity action from being’ tried at such term.

If ever this court has been presented with a situation of injustice to a defendant by wholly unwarranted delay on the part of a plaintiff, this is that case.

To deny the motion for a preference would be to put a premium on a course of conduct, which should be condemned rather than condoned.

Motion for a preference granted. The case is set down for trial on Monday, October 20, 1958, at 10:00 a.m. In accordance with Justice Deckelmah’s order of July 7, 1958, that an examination be held three days before trial plaintiffs may have one more opportunity to examine defendant Sunny Countryman before trial on Thursday, October 16, 1958, at 10:00 a.m., before me at the Sullivan County court house, Monticello, New York. If plaintiffs fail to conduct and conclude such examination on that day, such examination is ordered to be deemed to have been waived.

Submit order.