SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 22, 1969
CATHERINE COTTERAL, AN INFANT, ET AL., APPELLANTS,
CITY OF NEW ROCHELLE, RESPONDENT
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Westchester County, dated January 13, 1969, which (1) granted defendant's motion to dismiss the complaint because of plaintiffs' default in appearing for examination before trial and (2) denied plaintiffs' cross motion to vacate their default.
Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.
In our opinion, while the conduct of plaintiffs' attorneys in delaying the examination before trial was without excuse, the severe penalty of dismissing what is basically an infant's cause of action was not warranted. The imposition of the above set forth terms and conditions will serve to impress upon plaintiffs' attorneys the imperative sanctity of the previous court order, directing the examination before trial, and to safeguard defendant from prejudice in the delay.
Order reversed, on the law and the facts, without costs, and defendant's motion denied and plaintiffs' cross motion granted, upon the following terms and conditions: (a) the examination shall proceed at the time and place designated in a written notice of not less than 10 days, to be served by defendant upon plaintiffs' attorneys; (b) plaintiffs' attorneys shall personally pay costs of $200 to defendant prior to the commencement of the examination; and (c) all further proceedings on the part of plaintiffs are stayed until completion of the examination.
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