Opinion · Nylaw New York

LAVERNE v. INCORPORATED VILLAGE OF LAUREL HOLLOW, 18 N.Y.2d 635 (1966)

ERWINE LAVERNE et al., Appellants, v. Inc. Vill. OF LAUREL HOLLOWet al., Respondents.ERWINE LAVERNE et al., Appellants, v. EDWARD J. MEEHAN, Individually andas Police Sergeant of the Inc. Vill. of Laurel Hollow, Respondent., 272 N.Y.S.2d 780 (Court of Appeals of the State of New York. 1966)

Type
Opinion
Court
Nylaw New York
Jurisdiction
Nylaw
Date
1966-01-01
Topic
general

LAVERNE v. INCORPORATED VILLAGE OF LAUREL HOLLOW, 18 N.Y.2d 635 (1966) 272 N.Y.S.2d 780, 219 N.E.2d 294 ERWINE LAVERNE et al., Appellants, v. INCORPORATED VILLAGE OF LAUREL HOLLOWet al., Respondents.ERWINE LAVERNE et al., Appellants, v. EDWARD J. MEEHAN, Individually andas Police Sergeant of the Incorporated Village of Laurel Hollow, Respondent.Court of Appeals of the State of New York.Argued June 1, 1966 Decided July 7, 1966 Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDWARD ROBINSON, JR., J.

Citator

UpLaw has not yet analyzed LAVERNE v. INCORPORATED VILLAGE OF LAUREL HOLLOW, 18 N.Y.2d 635 (1966). The absence of a flag is not a finding that it is good law.

Authority status
pending
LAVERNE v. INCORPORATED VILLAGE OF LAUREL HOLLOW,18 N.Y.2d 635(1966)
272 N.Y.S.2d 780,219 N.E.2d 294
ERWINE LAVERNE et al., Appellants, v. INCORPORATED VILLAGE OF LAUREL HOLLOW
et al., Respondents.
ERWINE LAVERNE et al., Appellants,v.EDWARD J. MEEHAN, Individually and
as Police Sergeant of the Incorporated Village of Laurel Hollow, Respondent.
Court of Appeals of the State of New York.
Argued June 1, 1966
Decided July 7, 1966
Page 636
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDWARD ROBINSON, JR., J.Page 637
Henry Mark HolzerandPhyllis Tate Holzerfor appellants.Stephen Van R. UlmanandThomas C. Platt, Jr.,for respondents.
MEMORANDUM. Notwithstanding the lower court's error in determining that plaintiff's motion for a protective order pursuant to CPLR3103should have been addressed to the Appellate Division, rather than to the trial court, the court properly dismissed the complaint — in the sound exercise of its judicial discretion — because of plaintiff's willful failure to purge himself of his disobedience of prior court orders compelling disclosure on matters relevant to his causes of action and defenses thereto (CPLR3126). And while it is true that plaintiff's 3103 motion automatically suspended all disclosure proceedings regarding thePage 638particular matter to be disclosed, the making of such a motion did not in any way immunize Laverne from the dismissal of his complaint. The Appellate Division affirmed this dismissal because Laverne's totality of conduct evidenced a willful failure "to purge himself of his prior disobedience", a factual determination supported by the evidence and beyond the scope of this court's review.

As to plaintiff's constitutional argument that by compelling disclosure the court is denying him the privilege against self incrimination, the issue was thoroughly discussed and resolved inLevinev.Bornstein(13 Misc.2d 161[Sup. Ct., 1958], affd.7 A.D.2d 995[2d Dept.], affd. without opn.6 N.Y.2d 892[1959]). The privilege against self incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword to harass a defendant and to effectively thwart any attempt by defendant at a pretrial discovery proceeding to obtain information relevant to the cause of action alleged and possible defenses thereto. (See, also,Franklinv.Franklin,365 Mo. 442;Hazlettv.Bullis,12 A.D.2d 784[2d Dept., 1961].)

The order of the Appellate Division should be affirmed.

Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, SCILEPPI, BERGAN and KEATING concur.

Order affirmed.