Pun Ko Soo v. New York American Beverage Co. , 74 A.D.2d 823 ( 1980 )

In a negligence action to recover damages for personal injuries, (1) the parties cross-appeal from an order of the Supreme Court, Kings County, dated November 30, 1978, which, inter alia, partially granted defendant New York American Beverage Co.’s (American Beverage) motion to strike plaintiff’s interrogatories, and (2) American Beverage further appeals from stated portions of an order of the same court, dated July 18, 1979, which, upon granting reargument of an order dated May 22, 1979, inter alia, granted plaintiff’s cross motion to strike American Beverage’s answer to the complaint. The plaintiff has apparently abandoned his cross appeal. Upon American Beverage’s appeal, order dated November 30, 1978 affirmed. No opinion. Order dated July 18, 1979 modified, by (1) deleting all but the first decretal paragraph thereof and (2) adding thereto a provision denying plaintiff’s cross motion dated June 13, 1979, on condition that defendant American Beverage pay plaintiff the sum of $250. As so modified, order affirmed insofar as appealed from, the $250 payment is to be made within 20 days after service upon American Beverage of a copy of the order to be made hereon with notice of entry thereof and American Beverage’s time to answer the interrogatories is extended until 10 days after payment of the $250. Plaintiff is awarded one bill of $50 costs and disbursements. In the event the condition is not complied with, then the order is affirmed insofar as appealed from, with $50 costs and disbursements. Although American Beverage was remiss in failing to promptly move at Special Term to stay enforcement of the initial order dated November 30, 1978 and further remiss in failing to petition this court to stay Special Term’s conditional order dated May 22, 1979, we conclude that the sanction of dismissal of its answer was unduly harsh in light of its motivation to avoid rendering moot the instant appeal from the November 30, 1978 order. Hopkins, J. P., Lazer, Margett and Weinstein, JJ., concur.