Mostow v. Shorr

44 Misc. 2d 733, 255 N.Y.S.2d 320, 1964 N.Y. Misc. LEXIS 1961

Opinion

Anthony J. Di Giovanna, J.

Motion for an order striking ont the answer of the defendant for failure to appear for examination before trial.

The examination before trial was commenced by service of a notice. The defendant takes the unusual position that the CPLB does not provide for the relief requested and on the other hand takes the further position that only if an order for examination before trial has been obtained, can the relief sought be granted.

There is no doubt that under the Civil Practice Act the court had power to strike a pleading for willful disobedience of a notice for examination before trial. While not couched in the same language, the CPLB still provides for that relief, otherwise section 3103 has no meaning. Under that section the court may take any step necessary to protect the rights of a party when such rights are being hindered and defeated by the willful default of a defendant. It would be a mistake to hold, as the defendant requests, that the plaintiffs must first obtain an order to compel examination before trial before seeking the relief as set forth in the notice of motion. The purpose of the CPLB was to facilitate procedure and not hinder procedure.

Consequently, the court grants the motion to strike out the answer of the defendant and the answer is stricken unless on a date to be set in the order herein, the defendant is produced for examination before trial. In view of the delay caused to these plaintiffs by the action of the defendant, the plaintiffs have leave of this court to cause this action to be placed upon the calendar without completion of the examination before trial of the defendant. They are required to proceed expeditiously, however, in all other respects, and if they fail to do so, a motion may be made thereafter to strike the case from the calendar.