Green v. Mohamed

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered April 6, 1999, which, inter alia, denied defendants’ motion to vacate an underlying conditional order of dismissal granting plaintiffs’ motion to strike defendants’ answer, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, defendants’ motion to vacate granted, and the answer reinstated on condition that defendants pay plaintiffs $1,000 in costs within 30 days of the date of this order. If said condition is not met, the order is affirmed, without costs. Under the present circumstances, and in light of our strong policy favoring resolution of disputes on their merits, the lack of prejudice to plaintiffs, the relatively short delay in bringing the underlying motion, and the absence of willful or contumacious conduct on the part of defendants, it was an improvident exercise of discretion to strike defendants’ answer (see, Quality Jewelry Co. v Marcovici, 247 AD2d 280, 281; Matter of Kaufman v Board of Educ., 210 AD2d 226). If defendants are unable to produce defendant Ally Mohamed for examination before trial within a period to be set by the motion court, then we find that a sufficient sanction would be to preclude the use of Mohamed’s testimony at trial (see, Heyward v Benyarko, 82 AD2d 751). Concur — Sullivan, P. J., Rosenberger, Nardelli, Ellerin and Wallach, JJ.