Williams v. Bryant

In an action to recover damages for personal injuries, etc., the defendants City of New York and the New York City Board of Education appeal from (1) an order of the Supreme Court, Kings County (Jackson, J.), dated January 2, 1991, which conditionally struck their answer unless they produced a certain witness for an examination before trial within 60 days, and (2) an order of the same court, dated August 16, 1991, which, upon erroneously deeming the appellants’ motion for renewal as one for reargument, denied the motion.

Ordered that the order dated August 16, 1991, is reversed, on the law, the motion for renewal is granted, and, upon renewal, the order dated January 2, 1991, is vacated, and the plaintiffs’ motion to strike the appellants’ answer is denied; and it is further,

Ordered that the appeal from the order dated January 2, 1991, is dismissed, as academic, in light of our determination on the appeal from the order dated August 16, 1991; and it is further,

Ordered that the appellants are awarded one bill of costs.

The appellants’ application for reconsideration was based in part upon facts not previously before the court, and, under the circumstances of this case, the court improvidently exercised its discretion in deeming the motion one for reargument (see, Hantz v Fishman, 155 AD2d 415; Weisse v Kamhi, 129 AD2d 698; Patterson v Town of Hempstead, 104 AD2d 975). In addition, the court improvidently exercised its discretion in denying the application (see, Matter of Kennedy v Coughlin, 172 AD2d 666). Since there was no showing that the appellants’ failure to produce a witness for an examination before trial was willful or contumacious, the court should not have conditionally struck their answer (see generally, Nudelman v New York City Tr. Auth., 172 AD2d 503; Pietrowski v City of New York, 166 AD2d 423; Tschernia v Embanque Capital Corp., 161 AD2d 585, 586-587; Rubin v Pan Am. World Airways, 128 AD2d 765). Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.