Opinion
March 23, 1981
In a negligence action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Dutchess County, dated July 17, 1980, which, inter alia, granted the plaintiffs' motion to strike its answer for failure to appear for an examination before trial. Order reversed, without costs or disbursements, and motion denied on condition that defendant (1) submits to an examination before trial and (2) pays $750 to plaintiffs' attorney, and $750 to plaintiff Joseph Tinkleman. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by plaintiffs, or at such other time and place as the parties may agree. Defendant shall pay the aforesaid sums within 10 days after service upon it of a copy of the order to be made hereon, with notice of entry. In the event the conditions are not complied with, then order affirmed, with $50 costs and disbursements. In the absence of clear proof that the defendant's default was willful, it should have been accorded one additional opportunity to redeem itself and submit to an examination before trial (see Cinelli v. Radcliffe, 35 A.D.2d 829). Titone, J.P., Rabin, Margett and Weinstein, JJ., concur.