Opinion
June 11, 1979
In a negligence action to recover damages for personal injuries, etc., the appeal is from an order of the Supreme Court, Queens County, dated December 21, 1978, which denied plaintiffs' motion to strike the answer of the defendants-respondents Dr. Stanley Berliner, Dr. Leonard C. Burson and Queens Physicians Associates, P.C., upon condition that these defendants appear for an examination before trial upon a specified date. Order modified by adding thereto as a further condition that the respondents pay a total of $250 (the expense to be shared equally) to plaintiffs. As so modified, order affirmed, with $50 costs and disbursements to the plaintiffs. The respondent's shall make the payment within 20 days after service upon them of a copy of the order to be entered hereon, together with notice of entry thereof. The examination before trial shall proceed at the place designated in the order under review at a time to be fixed by the plaintiffs in a written notice of not less than 10 days, to be served after the aforesaid payment, or at such other time as the parties may agree. Although the Draconian remedy of dismissal is not warranted under the circumstances described, respondents did cause some of the delay complained of and additional sanctions are warranted to the extent provided for herein. Hopkins, J.P., Lazer, Rabin and Gulotta, JJ., concur.