Fire v. Bouquin , 58 A.D.2d 1012 ( 1977 )

Judgment unanimously affirmed, with costs to petitioner, on the memorandum decision at Trial Term, O’Donnell, J. (See, also, Matter of Empire Mut. Ins. Co. [Stroud], 36 NY2d 719; Alexander v Stone, 45 AD2d 216.) The issue before Stiller, J., when he granted plaintiff’s motion to strike Mattone’s answer for failure to submit to an examination before trial, was not identical to that presented when respondent insurer disclaimed for failure of Mattone, the insured, to co-operate in the defense of the action. (Appeal from judgment of Erie Supreme Court—insurance disclaimer.) Present—Cardamone, J. P., Simons, Hancock, Denman and Witmer, JJ.