Opinion
February 8, 1971
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County, dated July 30, 1970, which, inter alia, denied their motion to strike out defendant's answer on the ground that the defendant willfully failed to appear for an examination before trial (CPLR 3126, subd. 3). Order modified by (1) striking therefrom the directions concerning defendant's submitting to examination should he visit New York and, otherwise, submitting thereto 10 days prior to the case's first appearance on the Ready Calendar and (2) substituting therefor a provision directing defendant to appear for examination before trial on August 15, 1971, at 10:00 A.M., at the office of plaintiffs' attorney. As so modified, order affirmed, with $20 costs and disbursements to plaintiffs. In our opinion, to the extent that the order permitted defendant to delay the examination to the eve of trial it constituted an improvident exercise of discretion. Rabin, P.J., Hopkins, Latham, Shapiro and Brennan, JJ., concur.