Opinion
October 28, 1976
Order, Supreme Court, New York County, entered May 20, 1976, unanimously affirmed. Respondent shall recover of appellants $40 costs and disbursements of this appeal. It may well be that defendant-appellant is unable to produce for examination an employee of a defendant management concern actually out of business and that its failure to comply with two separate orders so to do was not willful. However, defendants' attitude of almost casual indifference to the directions of the court have necessitated the appropriate action of Special Term in setting the matter down for inquest. Nor is the order under appeal as drastic as it may appear, being actually no more than a preclusion: if defendant has no witnesses to produce, it would have none at a trial in any event, but plaintiff will still be put to his proof at inquest of the underlying issue of liability. In short, the order for inquest, made and entered pursuant to the order appealed from, is not simply for assessment but for inquest. The history of plaintiff-respondent's attempts to have an examination goes back to notice thereof in May, 1975; it includes two separate defaults in appearance and two orders, culminating in the production in January, 1976, of the very witness rejected as inadequate half a year earlier. And when reapplication was made to strike the answer for failure to comply with the court's order, no opposition was interposed then, but only, and again belatedly, by motion to vacate. Special Term properly rejected that application as "tardy and insufficient."
Concur — Markewich, J.P., Murphy, Lupiano, Birns and Nunez, JJ.