Delfyette v. Douth , 28 A.D.2d 846 ( 1967 )

No opinion. Beldoek, P. J., Christ, Rabin and Munder, JJ., concur; Benjamin, J., dissents and votes to reverse the order and to grant plaintiff’s motion to open her default, with the following memorandum: Plaintiff was seriously injured when struck by defendant’s car. She submitted to a pretrial examination, but thereafter failed to appear for or to submit to a physical examination, apparently because of mental and emotional instability. Because of that default, her action has been dismissed; and her subsequent motion to open the default and to vacate the judgment of dismissal has been denied. For such default, the penalty of dismissal is harsh and unusual. More, it runs counter to our established policy that favors the disposition of actions on their merits. And in this case we have the additional factor that the default apparently resulted from a condition not controllable by plaintiff. In light of these unusual circumstances, I believe the default should have been deemed excusable, and that it was an improvident exercise of discretion to deny the motion to open the default and to vacate the judgment. However, out -of consideration for defendant’s rights, the grant of that relief should be conditioned upon plaintiff’s submission to a physical examination and her payment of $100 costs.