Opinion
January 25, 1971
In a negligence action to recover damages for personal injuries, etc., defendant Molloy Murray Contracting Co. appeals from an order of the Supreme Court, Westchester County, dated September 25, 1970, which granted plaintiffs' motion to strike out said defendant's answer for failure to obey a prior order directing it to appear for examination before trial. Order reversed, with $10 costs and disbursements to respondents; and motion denied and answer of defendant Molloy Murray Contracting Co. reinstated upon condition that said defendant be precluded from calling any witness on its behalf unless plaintiffs shall be accorded the right to examine such witness at least 20 days before trial. Under the circumstances of this case we do not feel that the conduct of counsel or of appellant was a willful or contumacious disregard of the prior order of the court. It was therefore an improvident exercise of discretion to strike out the answer (CPLR 3126; La Manna Concrete v. Friedman, 34 A.D.2d 576; Goldner v. Lendor Structures, 29 A.D.2d 978). However, in the circumstances appearing, it is only fair that, if appellant finally locate a witness it desires to call at the trial, plaintiffs should have the opportunity to take the deposition of such witness at least 20 days before trial. Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.