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OLLIE K. FULLER ET AL. v. LOUIS STEELE ET AL. (12/09/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 9, 1968

OLLIE K. FULLER ET AL., RESPONDENTS,
v.
LOUIS STEELE ET AL., RESPONDENTS, AND GILBERT HOOPER ET AL., APPELLANTS

In a negligence action to recover damages for personal injuries and medical expenses, defendants Hooper and Carter appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, made on resettlement and dated October 30, 1967, as granted plaintiffs' motion to strike their answer unless they appear for examination before trial.

Beldock, P. J., Christ, Rabin, Benjamin and Martuscello, JJ., concur.

Order modified, on the law and the facts, by amending the condition therein, insofar as it is applicable to defendant Hooper, so as to require him to submit to examination at the place specified in the order under review at a time to be specified in a 10-day written notice by plaintiffs, which time shall be approximately 10 days before the case reaches trial. As so modified, order affirmed insofar as appealed from, without costs. The examination of defendant Carter shall proceed at the place specified in the order under review at a time to be specified in a 10-day written notice by plaintiffs, or at such other time and place as the parties may agree upon in writing. In our opinion, under all the facts and circumstances, defendants Hooper and Carter should be given another opportunity to appear for examination.

19681209

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