Golditch v. Francis , 12 A.D.2d 975 ( 1961 )

Appeal by defendant from so much of an order of the County Court, Putnam County, dated November 22, 1960, as denies her cross motion to dismiss plaintiff’s complaint and to strike the action from the Trial Calendar by reason of plaintiff’s refusal to answer any questions upon his examination before trial. Order insofar as appealed from reversed, without costs, cross motion granted, complaint dismissed and action struck from the Trial Calendar, unless plaintiff shall submit to his examination before trial by the defendant pursuant to the notice of examination heretofore served by her upon him; such examination to proceed on 20 days’ written notice given by defendant to plaintiff after the entry of the order hereon, or on any other date mutually fixed by written stipulation of the parties. Defendant was entitled to examine plaintiff in accordance with her notice by reason of plaintiff’s failure to move to vacate or modify the notice (Kohn v. Rockaway Crest Section No. 1, 4 A D 2d 877). Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.