We find, in the circumstances presented, that the severe penalty of striking the replies of Perrone and Gruss to the counterclaims of Tru-Check Computer Systems, Inc. was not warranted and that said parties should be given a final opportunity to appear for deposition. (See, Lull v Breiter, 127 A.D.2d 530, 531.) It is undisputed that Gruss and Perrone had resettled in California and are employed there. Thus, we cannot say, on this record, that their failure to appear was willful. Moreover, it appears that much of their testimony will be redundant. Nevertheless, we believe that a sanction is necessary and, accordingly, have provided for the same. It is obvious that the real conflict here is between the attorneys, who have been less than cooperative in their efforts in proceed with this litigation. In particular, counterclaim defendants' attorney appears to be acting either out of frustration over the adverse parties' exercise of priority of deposition, or pique because of his perception that the taking of depositions is being used for untoward tactical purposes. Even if the striking of the nonappearing parties' replies was justified, there was no warrant for precluding the appearing parties from testifying as to matters as to which Perrone and Gruss might have testified. They did nothing to incur a sanction which would have an adverse effect on their interests.
Finally, as even defendant Kaufman concedes, there was no need for requiring personal service upon him of an order calling for his deposition. Service on his attorneys would have sufficed.
Concur — Murphy, P.J., Sullivan, Ross, Milonas and Rubin, JJ.