Mark Askinazy, Respondent, v. Donald S. Jacobson, Appellant

(November 27, 1972) Mark Askinazy, Respondent, v. Donald S. Jacobson, Appellant. [MAJORITY] In a malpractice action against a dentist to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated May 31, 1972, which granted plaintiff's motion to strike defendant’s answer on the ground of his willful refusal to appear for a continued examination before trial pursuant to a prior court order. Order reversed, without costs, and motion denied, on condition that defendant pay plaintiff $250 as counsel fees and on the further condition that defendant appear for continuation of the examination before trial, as ordered by Special Term in a prior order. The $250 payment must be made within 20 days after entry of the order to be made hereon and defendant’s examination before trial shall continue at Special Term, Part II, at a time to be fixed in a written notice of not less than 10 days, to be served by plaintiff, or at such other place and time as the parties may agree upon. We agree with Special Term that defendant did not have the right to decide for himself the propriety of the order directing the examination before trial to continue and that defendant’s failure to appear as ordered was willful and contumacious. However, under the circumstances presented in the record, it was error for Special Term to strike defendant’s answer instead of applying the existent less drastic means to insure disclosure (Di Bartolo v. American & Foreign Ins. Co., 48 Misc 2d 843, affd. 26 A D 2d 992). Hopkins, Acting P. J., Munder, Shapiro and Crulotta, JJ., concur; Martuseello, J., not voting.