Adamo v. Pennsylvania Railroad

20 Misc. 2d 167, 199 N.Y.S.2d 870, 1959 N.Y. Misc. LEXIS 2837

Opinion

James S. Brown, J.

Plaintiff moves to strike the answers of each of the defendants for their failure to comply with plaintiff’s notice of examination before trial. The defendant Pennsylvania Railroad Company produced one of its employees for examination pursuant to said notice. The examination, however, was not concluded since objections were made to certain questions asked by plaintiff. The examination was accordingly adjourned so that plaintiff could obtain rulings thereon. No further action had been taken by plaintiff.

An answer may not be stricken for the refusal to answer questions at the examination before trial (Phannis v. Fortway Realty Corp., N. Y. L. J., May 9, 1958, p. 10, col. 8, per Hart, J.). It may only be stricken for a willful failure to appear (Civ. Prac. Act, § 299; Mack v. Edell, 284 App. Div. 1022). Accordingly, the motion with respect to the defendant Pennsylvania Railroad Company is denied, and since there is nothing to indi cate that defendant Brie Railroad Company’s failure to appear was that willful failure contemplated by section 299 of the Civil Practice Act, the motion with respect to it is also denied.

Submit order.