Seldin Organization v. Monvent, Inc.

26 A.D.2d 549, 271 N.Y.S.2d 602, 1966 N.Y. App. Div. LEXIS 4059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1966
• Status: Published

Opinion

In an action to recover upon a contract and for damages for breach of the contract, defendant appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Queens County, entered October 22, 1965, as granted plaintiff’s motion to strike out its answer on the ground of its failure to appear for pretrial examination and (2) from a judgment of said court, entered October 26, 1965, in plaintiff’s favor pursuant to said order. Judgment and order insofar as appealed from reversed, with $10 costs and disbursements to respondent, and motion to strike out the answer denied, on the following conditions: that defendant (1) submit to a continuation of the pretrial examination directed by the prior order of the court, entered August 23, 1965 and (2) pay to plaintiff $100 at or before the time fixed for such continuation of examination, as compensation in the circumstances. The continued examination shall proceed on a date to be fixed in a 10 days’ written notice and at the hour and place set forth in the parties’ previous stipulation or at such other time and place as the parties may agree upon by further stipulation. Defendant shall produce at such examination all papers and records mentioned in plaintiff’s original notice of pretrial examination, dated July 6, 1965. It does not appear that defendant’s failure to appear for the continued examination was the result of such willfulness as would justify dismissal of its answer. However, conditions are herewith imposed as the result of defendant’s failure to appear on certain previous examination dates and its failure to produce the required papers and records at the time it did attend. Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.