SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 6, 1968
RALPH GIORDANO, AN INFANT, BY HIS MOTHER AND NATURAL GUARDIAN, ET AL., RESPONDENTS,
SHERIDAN MAINTENANCE CORPORATION ET AL., APPELLANTS
Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
In our opinion, the answer of defendants Kausch and Mister Softee also have not been stricken. Both of these parties appeared at the court-ordered examination and Kausch produced the sought-after contract and answered questions pertaining to his relationship with Mister Softee. Mister Softee produced a "person having knowledge of the facts", viz., Kausch. However, it is our further opinion that plaintiffs should be permitted to examine the agents, servants and employees of Mister Softee having knowledge of the facts. Further, the disposition herein made as to Mister Softee should be without prejudice to any motions plaintiffs may desire to make for examination of Mister Softee by named persons (cf. Schacht Steel Constr. v. Brecher, 2 A.D.2d 967). The record indicates that on June 25, 1965 defendant Rhodie was informed for the first time that his appearance was required at the examination. Under these circumstances his failure to appear did not amount to a willful disregard of Special Term's prior order and he should be given an opportunity to have his day in court(Soffair v. Koffler, 29 A.D.2d 659; Page v. Lalor, 24 A.D.2d 883).
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