Sysol v. Sommer , 51 A.D.2d 1028 ( 1976 )

—In a negligence action to recover damages for personal injuries, defendant appeals from two orders of the Supreme Court, Nassau County, entered September 17, 1975 and October 7, 1975, respectively, which, inter alia, granted plaintiff’s motion to strike his answer. Orders reversed, without costs or disbursements, on condition that defendant pay plaintiff’s attorney the sum of $350 within 20 days after service upon defendant of a copy of the order to be made hereon, together with notice of entry; and otherwise orders affirmed, with one bill of $50 costs and disbursements. The striking of an answer is an extreme penalty and, under all of the circumstances, that penalty should not have been invoked in this case (see Shaw v Stewart Franklin Apts., 49 AD2d 892). Margett, Damiani, Rabin and Hawkins, JJ., concur; Cohalan, Acting P. J., dissents and votes to affirm the orders.