Opinion
March 20, 1962
Order, entered on October 6, 1960, denying plaintiff's motion to strike the answer of the defendants for willful failure to comply with a notice of examination and to vacate defendants' notice of examination of the plaintiff, and granting the defendants' cross motion to dismiss the complaint unless plaintiff appears for examination in compliance with the notice therefor, unanimously modified, on the law and on the facts, without costs, to the extent of denying the cross motion, and, as so modified, affirmed. Plaintiff's motion to vacate the defendants' notice of examination effected a stay of the examination (Civ. Prac. Act, § 291.) In the circumstances there is no basis for the finding of willfulness implicit in the conditional dismissal of the complaint. The time of and place for the examination of the plaintiff are to be provided in the order to be noticed for settlement hereon. Settle order on notice.
Concur — Breitel, J.P., Valente, McNally, Eager and Steuer, JJ.