Opinion
September 13, 1993
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order dated August 16, 1991, is reversed, on the law, the motion for renewal is granted, and, upon renewal, the order dated January 2, 1991, is vacated, and the plaintiffs' motion to strike the appellants' answer is denied; and it is further,
Ordered that the appeal from the order dated January 2, 1991, is dismissed, as academic, in light of our determination on the appeal from the order dated August 16, 1991; and it is further,
Ordered that the appellants are awarded one bill of costs.
The appellants' application for reconsideration was based in part upon facts not previously before the court, and, under the circumstances of this case, the court improvidently exercised its discretion in deeming the motion one for reargument (see, Hantz v Fishman, 155 A.D.2d 415; Weisse v Kamhi, 129 A.D.2d 698; Patterson v Town of Hempstead, 104 A.D.2d 975). In addition, the court improvidently exercised its discretion in denying the application (see, Matter of Kennedy v Coughlin, 172 A.D.2d 666). Since there was no showing that the appellants' failure to produce a witness for an examination before trial was willful or contumacious, the court should not have conditionally struck their answer (see generally, Nudelman v New York City Tr. Auth., 172 A.D.2d 503; Pietrowski v City of New York, 166 A.D.2d 423; Tschernia v Embanque Capital Corp., 161 A.D.2d 585, 586-587; Rubin v Pan Am. World Airways, 128 A.D.2d 765). Thompson, J.P., Sullivan, Miller, Ritter and Santucci, JJ., concur.