Oppenheim & Macnow, P. C. v. Worth

103 A.D.2d 687, 477 N.Y.S.2d 351, 1984 N.Y. App. Div. LEXIS 19301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1984
• Status: Published

Opinion

— Order of the Supreme Court, New York County (Seymour Schwartz, J.), entered September 12, 1983, which struck defendant’s pleading for failure to appear in response to a court-ordered examination before trial and which dismissed as moot defendant’s cross motion to preclude, unanimously reversed, so far as appealed from, on the facts and in the exercise of discretion, and motion to strike denied, on condition that defendant pay $500 costs to plaintiff and submit to oral examination at a time, place and date to be fixed in the order to be entered herein, which shall be within 20 days after entry of said order, without costs of the appeal. In the event defendant shall fail to comply with these conditions, the order appealed from is affirmed, with costs. Settle order within 10 days. 11 We are not satisfied that the actions of defendant and her counsel were so willful and contumacious as to warrant the extreme penalty of striking her answer for a first default in appearance. However, they do warrant the imposition of sanctions to compensate for the additional time and expense incurred by plaintiff. ¶ Settle order within 10 days. Concur — Murphy, P. J., Kupferman, Asch, Bloom and Kassal, JJ.