Bolser v. Newport Trucking, Inc.

In a negligence action to recover damages for personal injuries, etc., defendant Newport Trucking, Inc., *785appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated December 1, 1981, as, in effect, denied the branch of plaintiffs’ motion pursuant to CPLR 3126 to impose sanctions upon defendant Newport Trucking for its failure to appear at an examination before trial, on condition that it pay to plaintiffs $600 and submit to an examination before trial. Order affirmed insofar as appealed from, with $50 costs and disbursements. Although it does not appear that appellant’s defaults could be termed contumacious as a matter of law, appellant failed to adequately explain its failure to appear on two occasions for court-ordered examinations. Therefore, the order imposing a penalty and granting appellant one final opportunity to comply before its answer would be stricken was not an abuse of discretion under CPLR 3126 (see Iessi v Marino, 42 AD2d 583; First Nat. State Bank of N. J. v Schwartzman, 60 AD2d 641; Tinkleman v Hudson Val. Winery, 80 AD2d 894; cf. Ortiz v New York City Health & Hosps. Corp., 72 AD2d 741, 742). Titone, J. P., Gulotta, O’Connor and Niehoff, JJ., concur.