Leonard Marsh, Respondent, v. Arthur H. Lee & Sons, Inc., Defendant, and Richard Wheelright, Appellant

Leonard Marsh, Respondent, v. Arthur H. Lee & Sons, Inc., Defendant, and Richard Wheelright, Appellant. [MAJORITY] In a negligence action to recover damages for personal injuries, the appeal, as limited by appellant’s brief, is from so much of an order of the Supreme Court, Queens County, dated December 16, 1969, as, on reargument, adhered to the original decision striking out appellant’s answer to the complaint because of appellant’s failure to execute a transcript of its examination before trial, etc. Order reversed insofar as appealed from and respondent’s motion to strike out appellant’s answer denied, on condition that appellant pay respondent $10 costs and disbursements of this appeal, which are hereby awarded, within 10 days after service of a copy of the order hereon with notice of entry. In our opinion, it was an improvident exercise of discretion to strike appellant’s answer, since the requested material was furnished prior to the hearing of the motion. Rabin, Acting P. J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.