David Webb, Inc. v. Rosenstiel , 38 A.D.2d 517 ( 1971 )

Order, Supreme Court, New York County, entered on July 16, 1971, directing that defendant Rosenstiel’s answer be stricken unless she appear for a continuation of her examination on a specified date at Special Term, Part II, unanimously modified, on the law and the facts, to the extent of granting the motion to strike the answer unless defendant Rosenstiel submit to further examination at such place and at such time as shall be fixed by plaintiff by written notice of not less than 10 days, served on defendant’s attorney. Appellant shall recover of respondent $50 costs and disbursements of this appeal. True, the defendant has been difficult, but notwithstanding, has previously appeared for examination, and did appear pursuant to the order appealed from, although the plaintiff apparently did not; nor did plaintiff seek any relief therefrom. And, in view of her (defendant) change of attorneys, we cannot peremptorily conclude her failure to co-operate has been willful. Concur — Stevens, P. J., McGivern, Markewich and Murphy, JJ.