Opinion
November 28, 1983
In an action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Westchester County (Burchell, J.), entered November 10, 1982, which granted defendant's motion for reargument of a prior order of the same court, entered June 17, 1982, granting his motion to strike defendant's answer, and thereupon vacated the prior order and denied his motion to strike defendant's answer upon condition that the defendant appear for an examination before trial on a specified date. Order modified, as a matter of discretion, by adding thereto a provision that the order entered June 17, 1982 be vacated upon the additional condition that defendant's attorneys personally pay plaintiff the sum of $500. As so modified, order affirmed, with costs to plaintiff. Defendant's time to comply with the condition requiring his attorneys to pay $500 is extended until 10 days after service upon it of a copy of the order to be made hereon, with notice of entry. Under the circumstances disclosed by this record, it does not appear that defendant's default was willful and, therefore, Special Term properly accorded defendant one additional opportunity to redeem itself and submit to an examination before trial. Nonetheless, an appropriate monetary sanction should have been imposed (see Plainview Assoc. v Miconics Inds., 90 A.D.2d 825; Tinkelman v Hudson Val. Winery, 80 A.D.2d 894; Cinelli v Radcliffe, 35 A.D.2d 829). Titone, J.P., O'Connor, Weinstein and Rubin, JJ., concur.