Opinion
April 3, 1981
Appeal from the Cayuga Supreme Court.
Present — Dillon, P.J., Cardamone, Doerr, Denman and Moule, JJ.
Order unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: Striking pleadings for failure to comply with an order directing submission to an examination before trial is a severe penalty which should be imposed only when failure to comply has been willful or contumacious. Since it is impossible to determine whether defendant's possible failure to comply with the order will be willful, Special Term erred in striking the answer and counterclaim prospectively (see Ortiz v New York City Health Hosps. Corp., 72 A.D.2d 741). The order should be modified by striking therefrom the second decretal paragraph.