Opinion
July 1, 1974
In an action for a declaratory judgment upon automobile insurance policies, plaintiff appeals from an order of the Supreme Court, Orange County, entered December 15, 1972, which granted a motion by defendant Michigan Mutual Insurance Company for summary judgment dismissing the complaint. Plaintiff had also moved to strike out the answers of both defendants for failure to submit to pretrial examination. Order reversed, without costs, motion by the above-named defendant denied and motion by plaintiff granted to the extent of directing defendants to submit to examination before trial. The examinations shall proceed upon a written notice of not less than 10 days, to be given by plaintiff. The papers disclose the existence of material issues of fact which may be resolved only upon trial and after plaintiff shall have had the benefit of examining defendants before trial. Hopkins, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.