CINELLI v. RADCLIFFE,35 A.D.2d 829[2d Dept 1970]
MARYANNE CINELLI, an Infant, by Her Parent and Natural Guardian, ROBERT
CINELLI, et al., Respondents, v. PETER RADCLIFFE, Infant, by His Parent,
HAROLD RADCLIFFE, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Nassau County, dated April 27, 1970, which granted plaintiffs' motion to strike out defendant's answer for failure to submit to examination before trial and ordered an inquest. Order reversed, with $10 costs and disbursements to plaintiffs, and plaintiffs' motion granted only to the extent of precluding defendant from testifying at the trial unless he (1) submits to an examination before trial on such date and place as shall be fixed by plaintiffs by written notice of not less than 10 days served upon defendant's attorney and (2) pays $250 to plaintiffs' attorney five days before such date for examination. In our opinion, the striking of an answer is an extreme and drastic penalty which should not be invoked where, as at bar, the moving affidavit fails to show conclusively that the default in appearing on examination before trial was clearly deliberate or contumacious (Du Boisv.Iovinella,15 A.D.2d 616). Other sanctions, such as are herein imposed, are more appropriate (Thornlowv.Long Is. R.R. Co.,33 A.D.2d 1027;Goldnerv.Lendor Structures,29 A.D.2d 978). The existence of a prior order directing submission to such examination, absent facts equating a willful default, does not require the striking of defendant's answer (Stockmanv.Marks Polarized Corp.,25 A.D.2d 883). Where the conduct of defaulting parties does not amount to a willful disregard of such a prior order, they should be given "one more additional chance to redeem themselves and have their day in court" (Soffairv.Koffler,29 A.D.2d 659,660;Buy-Rite Equip. Corp.v.Hirsch,28 A.D.2d 1006). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.