Collins v. Hayden on the Hudson Condominium , 602 N.Y.S.2d 867 ( 1993 )

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about February 3, 1993, which, insofar as appealed from, directed defendant Condominium to repair the conceded common elements of plaintiffs’ townhouse, and struck defendant Schilian’s answer unless he appeared for a deposition within 90 days, unanimously affirmed, without costs.

Inasmuch as defendant Condominium’s by-laws require the Board to maintain common elements, the preliminary conference order on appeal, which merely directs the Condominium to restore the conceded common elements of plaintiffs’ townhouse, does no more than require defendants to do that which they concede they must do. It does not require the Condominium to repair items disputably not common elements and which may not be the Condominium’s responsibility. Nor was it an abuse of discretion to conditionally strike individual defendant Schilian’s answer, there being no showing of any good faith attempt by him or his counsel to have him appear for the court-ordered deposition (see, Montgomery v Colorado, 179 AD2d 401). Concur—Murphy, P. J., Kupferman, Ross and Rubin, JJ.