Affiliated Distillers Brands Corp. v. Metropolitan Package Stores Ass'n

23 A.D.2d 650, 257 N.Y.S.2d 495, 1965 N.Y. App. Div. LEXIS 4605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1965
• Status: Published

Opinion

Order, entered on January 5, 1965, unanimously affirmed, with $30 costs and disbursements to petitioners-res-pondents. Special Term has ordered an examination of respondents in order to frame a complaint pursuant- to CPLR 3102 (sufod. [e]). We agree that respondents have shown a meritorious ease for this relief. The only difficulty presented is that respondents have framed their request as a special proceeding and appellants argue that they were thereby prevented from submitting affidavits in opposition. Assuming that they are correct in this contention, no prejudice resulted. Counsel were invited on the argument to state what affidavits they would have submitted. It was apparent that nothing material would be forthcoming, and the nature of the proceeding indicates that it would be most unusual if answering affidavits would suit any purpose. Accordingly, no prejudice has been shown. Settle order on notice fixing dates for examinations to proceed. Concur — Botein, P. J., Breitel, McNally, Stevens and Steuer, JJ.