
    (June 11, 1973)
    Pasquale Attanasio et al., Respondents, v. Paul Scagnelli, Respondent, and Gilberto Brignoni et al., Appellants.
   In a negligence action to recover damages for personal and property injuries, defendants Gilberto Brignoni and Jose Velasquez appeal, as limited by their brief, from an order (made on resettlement) of the Supreme Court, Kings County, dated December 14, 1972, which (1) granted plaintiffs’ motion to strike appellants’ answers by reason of appellants’ failure to appear for an examination before trial previously ordered by said court, (2) directed an assessment of damages and (3) denied appellants’ cross motion for a protective order and to examine plaintiffs and codefendant Scagnelli before trial. Order modified by deleting the first two decretal paragraphs thereof (which granted plaintiffs’ motion and directed an assessment of damages) and substituting therefor a provision (1) denying plaintiffs’ motion on condition that appellants pay plaintiffs’ attorneys $250 and (2) precluding appellants from testifying at the trial unless they submit to examination before trial by plaintiffs at least 30 days before trial. As so modified, order affirmed, with $20 costs and disbursements to plaintiffs. The $250 shall be paid within 20 days after entry of the order to be made hereon. In' our opinion, under the circumstances of this case, it was an improvident exercise of discretion to grant plaintiffs’ motion unconditionally. Rather, it should have been denied, on condition of plaintiffs’ attorneys being compensated for the additional time spent by them and their additional expense and inconvenience which resulted from appellants’ failure to submit to the examination, and with appropriate provision conditionally precluding appellants from testifying at the trial. Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.  