FONTANELLA v. FONTANELLA

The court was within its discretion in conditioning the denial of plaintiff's motion to strike defendant's testimony upon defendant's payment of plaintiff's attorney's fees. (CPLR 3126.) Those fees were necessitated solely by defendant's failure to comply with the court's earlier order which required that she serve and file an affidavit of net worth by March 17, 1989. However, the court abused its discretion by arbitrarily fixing the amount of the fees, and we accordingly remand so that fees may be fixed upon a proper showing of the value of the work necessitated and amount of time actually expended.

Concur — Ross, J.P., Rosenberger, Ellerin, Wallach and Rubin, JJ.