Shanberg v. Georgetowne Mansions, Inc. 52 A.D.2d 597

In an action to recover damages for trespass, plaintiffs appeal from an order of the Supreme Court, Kings County, dated December 10, 1975, which granted respondent’s motion to (1) vacate a previous order of the same court striking its answer and (2) reinstate the said answer. Order modified by adding *598thereto provisions (1) conditioning the grant of the motion upon the payment of $250 by respondent to plaintiffs and (2) authorizing plaintiffs, if they be so advised, to conduct an examination before trial of respondent. As so modified, order affirmed, without costs or disbursements. The $250 payment is to be made within 20 days after entry of the order to be made hereon and the examination before trial shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by plaintiffs, or at such time and place as the parties may agree. On the record on this appeal, it cannot be said that Trial Term abused its discretion in vacating the prior order and in reinstating the answer (see Shaw v Stewart Franklin Apts., 49 AD2d 892). However,- we are of the opinion that conditions should have been attached to such vacatur and that plaintiffs should have the right to conduct an examination before trial of respondent. Hopkins, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.