
    Morris Semsky et al., Plaintiffs, v. Jo-Mar Bake Shop Inc., et al., Defendants.
    Supreme Court, Special Term, Bronx County,
    March 12, 1958.
    
      
      Leonard Glickstein for plaintiffs..
    
      Friedman <§ Friedman for Jo-Mar Bake Shop Inc., defendant.
    
      Samuel Newfield for Sherwin Grossfield, defendant.
   Matthew M. Levy, J.

On the argument (Feb. 18, 1958) of the instant motion (pursuant to notice dated Jan. 22, 1958, and returnable Feb. 11, 1958), defendants’ notice of motion (per Spector, J., dated Feb. 15, 1958, and returnable Feb. 27, 1958) to vacate plaintiffs’ notice, dated October 28, 1957, was withdrawn as an affirmative application, and leave was granted to submit the papers thereon as additional answering affidavits in opposition to the present motion.

By this application, plaintiffs seek to strike the answers of defendants, including the counterclaim of defendant Regan Purchase & Sales Corp., and to permit plaintiffs to enter judgment, upon the ground that defendants failed to appear on November 13, 1957, for their examination before trial in pursuance of plaintiffs’ notice therefor, dated October 28, 1957, heretofore referred to. The motion is denied.

Defendants had duly moved to vacate the notice, which motion acted as a stay (Civ. Prac. Act, § 291). The order on that motion denied defendants’ application to vacate, with leave to renew upon proper papers. (Semsky v. Jo-Mar Bake Shop, 10 Misc 2d 628.) The fact that defendants did not move promptly to renew their motion to vacate or that they did not voluntarily appear for examination does not justify striking the answers, for the order denying the motion to vacate did not fix a time and place at which defendants were directed to appear for such examination. Plaintiffs’ remedy was to move to resettle the order so as to have it provide such a direction.

In so holding, I do not condone defendants’ procedures, especially since examinations are to be arranged, if at all possible, on a professional consensual basis (Marie Dorros, Inc. v. Dorros Bros., 274 App. Div. 11, 14). Therefore, giving consideration to the papers before me and plaintiffs’ application for other and further relief, defendants are directed to appear for examination as adverse parties before trial at Special Term, Part I, of this court on March 20, 1958, on the matters specified in rule 121-a of the Rules of Civil Practice as recently amended, to wit: “ with respect to the relevant and material allegations of fact put in issue by the pleadings in the action.” All pertinent books, papers and documents will be there produced for use in accordance with section 296 of the Civil Practice Act.  