Opinion
May 22, 1987
Appeal from the Supreme Court, Cattaraugus County, Horey, J.
Present — Callahan, J.P., Denman, Boomer, Pine and Lawton, JJ.
Order unanimously modified, on the law, and as modified, affirmed, without costs, in accordance with the following memorandum: The court properly denied plaintiff's motion for summary judgment. By their affidavits and that of their accountant, defendants made a sufficient showing in opposition to the motion to raise triable questions of fact on the validity of their defenses to notes (CPLR 3212 [b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Moreover, in view of plaintiff's failure to comply with defendants' discovery notice and its inability to produce certain records pertinent to these transactions, defendants tendered an acceptable excuse for their failure to produce documentary evidence supporting their defenses (CPLR 3212 [f]; Zuckerman v. City of New York, supra).
While the court properly granted defendants leave to commence a separate action incorporating the allegations of counterclaims which had been dismissed (see, CPLR 3211 [e]; Rochester Poster Adv. Co. v. Town of Penfield, 51 A.D.2d 870), the court erred in granting defendants leave to seek consolidation of such action with plaintiff's action. An order granting defendants leave to consolidate would be irreconcilable with the order dismissing their counterclaims (cf., Dain Dill v. Betterton, 39 A.D.2d 939) and would defeat defendants' express waiver of their right to interpose counterclaims or setoffs in litigation on the notes.
Finally, the court erred in ordering the conditional dismissal of plaintiff's complaint as a sanction for nondisclosure. Defendants did not move for such relief and consequently plaintiff was not put on notice that disclosure sanctions might be imposed (see, Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3126:1, at 640; 7 Carmody-Wait 2d, N Y Prac § 42:190, at 262; see also, Korobkin v. Chalek, 7 A.D.2d 924, affg 13 Misc.2d 582). Moreover, defendants failed to show that plaintiff disobeyed a court order for disclosure or willfully failed to disclose information sought by defendants (see, CPLR 3126).