
    Bank of New York, Appellant, v John F. Hyland, Also Known as John Hyland, et al., Respondents.
   Order unanimously modified, on the law, and as modified, affirmed, without costs, in accordance with the following memorandum: The court properly denied plaintiff’s motion for summary judgment. By their affidavits and that of their accountant, defendants made a sufficient showing in opposition to the motion to raise triable questions of fact on the validity of their defenses to notes (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Moreover, in view of plaintiff’s failure to comply with defendants’ discovery notice and its inability to produce certain records pertinent to these transactions, defendants tendered an acceptable excuse for their failure to produce documentary evidence supporting their defenses (CPLR 3212 [f]; Zuckerman v City of New York, supra).

While the court properly granted defendants leave to commence a separate action incorporating the allegations of counterclaims which had been dismissed (see, CPLR 3211 [e]; Rochester Poster Adv. Co. v Town of Penfield, 51 AD2d 870), the court erred in granting defendants leave to seek consolidation of such action with plaintiffs action. An order granting defendants leave to consolidate would be irreconcilable with the order dismissing their counterclaims (cf., Dain & Dill v Betterton, 39 AD2d 939) and would defeat defendants’ express waiver of their right to interpose counterclaims or setoffs in litigation on the notes.

Finally, the court erred in ordering the conditional dismissal of plaintiffs complaint as a sanction for nondisclosure. Defendants did not move for such relief and consequently plaintiff was not put on notice that disclosure sanctions might be imposed (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:1, at 640; 7 Carmody-Wait 2d, NY Prac § 42:190, at 262; see also, Korobkin v Chalek, 7 AD2d 924, affg 13 Misc 2d 582). Moreover, defendants failed to show that plaintiff disobeyed a court order for disclosure or willfully failed to disclose information sought by defendants (see, CPLR 3126). (Appeal from order of Supreme Court, Cattaraugus County, Horey, J.—summary judgment.) Present—Callahan, J. P., Denman, Boomer, Pine and Lawton, JJ.  