Opinion
October 2, 1967
Order of the Supreme Court, Queens County, dated June 14, 1967, which denied defendant's motion to vacate his default for failure to appear for an examination before trial and granted plaintiff's cross motion to strike defendant's answer, reversed, with $10 costs and disbursements; and defendant's motion granted and plaintiff's cross motion denied, on condition that defendant appear for examination by plaintiff at 2:00 P.M. on December 6, 1967 at Special Term, Part II, of the Supreme Court, County of Queens, or at such other time and place as the parties may agree by written stipulation. Appeals from two orders of said court dated March 16, 1967 and April 24, 1967, respectively, dismissed, as moot, without costs. At the times fixed by notice and subsequent order for defendant's pretrial examination, he was employed outside the United States. His attorneys offered to produce him at the time of his annual vacation, when he would return to this country. Clearly, these facts do not involve the willfulness which justifies an order pursuant to CPLR 3126 ( Stockman v. Marks Polarized Corp., 25 A.D.2d 883). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.