MERRYL KIHL, APPELLANT, v. KARL O. PFEFFER, ET AL., DEFENDANTS, HONDA MOTOR
CO., INC., RESPONDENT.
94 N.Y.2d 118 (1999).
November 30, 1999
2 No. 188
(99 NY Int. 0163)
Decided November 30, 1999
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Thomas F. Gleason, for appellant.
Eric A. Portuguese, for respondent.
KAYE, CHIEF JUDGE:
At issue is the dismissal of a complaint against defendant Honda Motor
Co., Inc. for plaintiff's failure to respond to Honda's
interrogatories within court-ordered timeframes. We conclude that the
trial court did not abuse its discretion in dismissing the complaint,
and affirm the Appellate Division order so holding.
On July 26, 1995, plaintiff commenced a damages action for personal
injuries arising out of a one-car accident six months earlier.
Alleging that she was a passenger in a Honda that skidded off a Nassau
County roadway in the Town of Oyster Bay, plaintiff sued the driver,
Karl G. Pfeffer, as well as Honda, the County and the Town. As against
Honda she claimed negligence, breach of express and implied
warranties, strict products liability and failure to warn in
connection with the automobile and its component parts, including the
seat belts. Honda responded with a general denial, cross-claims and a
host of discovery requests, including demands for expert witness
disclosure, collateral source information, no-fault authorizations,
medical information and certain records.
On March 18, 1996, the parties convened before the court for a
preliminary conference, resulting in an extensive Preliminary
Conference Order fixing specific dates for discovery, to be completed
within six months. The order was consented to by each party and signed
by the Trial Judge. Most pertinently, the order required plaintiff to
respond to Honda's interrogatories "within 30 days following receipt
SNIPPETS:
At issue is the dismissal of a complaint against defendant Honda Motor Co., Inc. for
We conclude that the trial court did not abuse its discretion in dismissing the complaint,
On July 26, 1995, plaintiff commenced a damages action for personal injuries arising out of a
As against Honda she claimed negligence, breach of express and implied warranties, strict
Honda responded with a general denial, cross-claims and a host of discovery requests,
On March 18, 1996, the parties convened before the court for a preliminary conference,
The order was consented to by each party and signed by the Trial Judge.
Having had no response, on September 13,1996%-roughly five months beyond the response date
Honda alleged that without specificity as to the claimed defect in the automobile it could
Plaintiff's counsel submitted an affidavit opposing the motion, and that same day%-December
Interrogatory 43, for example, seeking specificity as to the purported design defect, was
Honda's Order with Notice of Entry, indicating service by mail on all other parties at their
The Appellate Division affirmed, with two Justices dissenting on the ground that a hearing
The double dissent on an issue of law brought the case to this Court (CPLR 5601(a)).
Second, a properly executed affidavit of service raises a presumption that a proper mailing
the denials of receipt by persons who reviewed plaintiff's lawyer's June mail were
Third, when a party fails to comply with a court order and frustrates the disclosure scheme
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