Opinion
November 1, 1971
In a negligence action to recover damages for personal injuries, etc., defendant Hertzberg appeals from (1) an order of the Supreme Court, Nassau County, dated August 28, 1970, which denied his motion to vacate a prior order of said court, dated July 15, 1970, striking his answer for failure to appear for pretrial examination, directing an assessment of damages and severing the action as to defendant Bernstein, (2) a further order of the same court, dated September 17, 1970, which denied defendant Hertzberg's renewed motion for the same and related relief, and (3) a judgment of said court in favor of plaintiffs against defendant Hertzberg, entered October 2, 1970, upon a jury verdict assessing damages. Order dated August 28, 1970, affirmed, without costs. Order dated September 17, 1970, reversed, without costs, and defendant Hertzberg's renewed motion to vacate the judgment granted, upon the following terms and conditions: (1) defendant Hertzberg shall appear for examination before trial upon 10 days' written notice by plaintiffs, if plaintiffs are so disposed, and (2) defendant Hertzberg's attorneys personally shall pay plaintiffs $250 within 10 days after service of the order to be made hereon, with notice of entry; otherwise, said order is affirmed, with $50 costs and disbursements (cf. Barrada v. Target Constr. Corp., 31 A.D.2d 810; Page v. Lalor, 24 A.D.2d 883). In the event the conditions herein imposed on the determination of the appeal from the order dated September 17, 1970 are met, the appeal from the judgment is dismissed as academic, without costs; otherwise, the judgment is affirmed, without costs. Shapiro, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.