
    Robert S. Seldin et al., Respondents, v Nassau County Medical Center et al., Defendants, and Alphonso Capone, Appellant.
   — In a negligence action to recover damages for personal injuries, etc., defendant Alphonso Capone appeals from an order of the Supreme Court, Nassau County (Kelly, J.), entered December 10, 1981, which granted plaintiffs’ motion to strike his second demand for interrogatories. Order reversed, with $50 costs and disbursements, and motion denied. Special Term erred in finding that the mere presence of appellant’s attorney at the examination before trial of plaintiff Robert S. Seldin, without his speaking once, constituted participation which, under CPLR 3130, barred appellant from serving interrogatories upon plaintiffs without leave of court. In addition, the interrogatories seek information which is relevant and necessary to the defense of the action. Thompson, J. P., O’Connor, Brown and Rubin, JJ., concur.  