Roy Green et al., Respondents, v. Michael Roth et al., Appellants. (And a Third-Party Action.)

Roy Green et al., Respondents, v Michael Roth et al., Appellants. (And a Third-Party Action.) [MAJORITY] In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Queens County, dated May 20, 1980, which (1) granted plaintiffs’ motion for summary judgment based upon defendants’ failure to comply with a discovery order and (2) set the matter down for an inquest. Order reversed, without costs or disbursements, and plaintiffs’ motion for summary judgment denied. Defendants’ actions in failing to comply with the discovery order were not so contumacious as to warrant the granting of summary judgment. Nor, for that matter, was the earlier conditional order of Mr. Justice Lerner self-executing. Since the spring in question has been made available for inspection, summary disposition of the action is inappropriate. Mollen, P. J., Titone, Lazer and Cohalan, JJ., concur.