BUSHANSKY BUSHANSKY v. EQUITY TRANSPORTATION CO INC (1998)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated November 13, 1997, which denied their motion to strike the answer of the defendants Equity Transportation Co., Inc., and James Clarence Junior.

ORDERED that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion to strike the respondents' answer pursuant to CPLR 3126 based upon the failure of the defendant James Clarence Junior to submit to an examination before trial.   The plaintiffs did not dispute defense counsel's assertion that the parties had previously stipulated that such failure would result in James Clarence Junior being precluded from testifying at trial (see, Ferrantello v. St. Charles Hosp. & Rehabilitation Center, 249 A.D.2d 263, 671 N.Y.S.2d 285;  Smith v. City of New York, 239 A.D.2d 337, 657 N.Y.S.2d 1006;  Pan World Constr. Corp. v. 791 Park Ave. Corp., 185 A.D.2d 105, 107, 585 N.Y.S.2d 731).

MEMORANDUM BY THE COURT.