DeFilippis v. Traian

In an action to recover damages for personal injuries, etc., defendants appeal from (1) an order of the Supreme Court, Nassau County (Kelly, J.), dated July 2, 1981, which granted plaintiffs’ motion pursuant to CPLR 3126 to strike their answer and (2) a further order of the same court, dated October 2,1981, which denied their motion for reargument. Order dated July 2, 1981 reversed, without costs or disbursements, and motion to strike denied, without prejudice to renewal in the event defendants are not produced for an examination before trial at Special Term, Part II, of the Supreme Court, Nassau County on December 20, 1982, at 10:00 a.m. Appeal from the order dated October 2, 1981 dismissed, without costs or disbursements. No appeal lies from an order denying reargument. On the record herein, defendants’ 819 representatives and counsel have not demonstrated good faith diligent efforts to locate the defendants. However, in view of the drastic nature of the striking of a pleading, we afford a further opportunity to produce the defendants for examination before trial within a reasonable time. If not so produced, plaintiffs may, if they be so advised, renew their motion to strike (see De Joy v L & T Tavern Corp., 89 AD2d 613). O’Connor, J. P., Bracken, Brown and Niehoff, JJ., concur.