Opinion
October 15, 1963
Order, entered on May 23, 1963, unanimously modified, upon the law and the facts, and in the exercise of discretion, without costs, to provide that the answer of defendant-respondent shall be and is stricken unless the defendant shall appear for examination before trial at Special Term, within 90 days after entry of the order herein, at a date to be fixed in such order. A date and place in the city here for the examination of the said defendant were fixed in the notice which was duly served for his examination; and this defendant, failing to move against the notice, agreed by a series of stipulations to an adjournment of the examination to future dates to be held here. There is no factual showing of undue hardship to move the court in its discretion to now modify the notice to change the place of examination, and, thus, he should be directed to appear here for the examination notwithstanding that he has now acquired a foreign State residence. (See Mossew v. To Market, 3 A.D.2d 189; Drews v. Spencer, 274 App. Div. 802; see, also, CPLR, §§ 3103, 3126.) Settle order on notice.
Concur — Breitel, J.P., Rabin, McNally, Stevens and Eager, JJ.