Crawford v. Toyota Motor Credit Corp. , 724 N.Y.S.2d 595 ( 2001 )

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about July 13, 2000, which, to the extent appealed from, denied defendant Amelia Querol’s motion for summary judgment dismissing plaintiff’s complaint against her, unanimously affirmed, without costs. Order, same court and Justice, entered on or about November 29, 2000, which, as limited by the briefs, struck defendant Querol’s answer, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the answer reinstated, and the motion to preclude defendant from offering evidence at trial granted unless defendant appears for examination before trial within a time period to be set by the motion court.

We affirm the IAS court’s denial of defendant’s motion for summary judgment since she has not appeared for examination before trial and there exist questions of material fact as to her negligence. However, we find it was an improvident exercise of discretion to strike defendant’s answer for failure to appear for examination before trial in light of the absence of willful or contumacious conduct and counsel’s diligent efforts to find her. If defendant does not appear for examination before trial within a time period to be set by the motion court, then we find that a sufficient sanction would be to preclude the use of Ms. Querol’s testimony at trial (see, Green v Mohamed, 275 AD2d 599; Heyward v Benyarko, 82 AD2d 751). Concur— Rosenberger, J. P., Williams, Tom, Lerner and Buckley, JJ.