In a negligence action to recover damages for personal injuries, defendant Edmonds appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County, dated October 2, 1972, as, in denying plaintiff’s motion to strike said defendant’s answer for his failure to appear at an examination before trial, conditioned the denial upon said defendant’s attorneys scheduling a date for the examintaion on or before November 3, 1972 and paying $100 costs to plaintiff’s attorneys. Order modified by (1) striking from the first decretal paragraph thereof (which conditionally denied the motion) everything after the word “ denied ” and (2) striking therefrom the second decretal paragraph (which granted plaintiff leave to renew the motion “in the event of a default of” said defendant) and substituting therefor the following: “ Ordered that in the event that defendant James B. Edmonds does not submit himself to examination before trial by plaintiff at least 30 days before the trial he shall be precluded from testifying at the trial.” As so modified, order affirmed insofar as appealed from, without costs. In our opinion, the conditions imposed by Special Term were an improvident exercise of discretion and the motion should have been denied, with the sanction of conditional preclusion as provided for herein. Martuscello, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.
Ruyack v. Ruyack
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