Opinion
November 3, 1980
In a negligence action to recover damages for personal injuries, etc., the defendant City of New York appeals from an order of the Supreme Court, Kings County, dated September 25, 1979, which, upon the city's failure to appear at an examination before trial, granted plaintiffs' oral motion to strike its answer. Order reversed, without costs or disbursements, and plaintiffs' motion to strike denied on the conditions that the city appear for an examination before trial, that the parties stipulate that the place of the examination may be other than within the county in which the action is pending, that the city pay the expenses of the examination and that the city pay plaintiffs' attorney the sum of $500. The city shall pay the $500 and execute the stipulation within 10 days after service upon it of a copy of the order to be made hereon, together with notice of entry thereof. The examination shall thereafter proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by plaintiffs, or at such other time and place as the parties may agree. In the event that any of the conditions are not complied with, then order affirmed, with $50 costs and disbursements. Renewed motion by the city to amend the record on appeal denied. We do not accept the city's explanation for its failure to comply with court ordered discovery, but we hold that the sanction imposed was extreme under the circumstances of this case. The city should be afforded one final opportunity to comply (see CPLR 3126; Cinelli v. Radcliffe, 35 A.D.2d 829; La Manna Concrete v. Friedman, 34 A.D.2d 576). Under the circumstances of this case, it is not unreasonable to permit the examination to proceed at plaintiffs' counsel's office, or at a reasonable location of his choosing; the city shall assume the expenses of the examination and, in addition, shall pay the attorney for the plaintiffs the sum of $500. Damiani, J.P., Titone, Mangano and Gibbons, JJ., concur.