Allen v. Manhattan & Bronx Surface Transit Operating Authority

170 A.D.2d 237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1991
• Status: Published

Opinion

Order of Supreme Court, Bronx County (Lewis R. Friedman, J.), entered on or about May 4, 1990, inter alia, denying defendants’ motion and cross motion to strike the case from the Trial Calendar, unanimously affirmed, without costs.

Defendant, Manhattan and Bronx Surface Transit Operating Authority (MABSTOA), moved to strike the case from the Trial Calendar upon the ground that plaintiff failed to execute the transcript of the preliminary hearing conducted pursuant to Public Authorities Law § 1212 (5). The statute, however, does not require plaintiff to do so. Hence, the record indicates that plaintiff has complied with defendants’ other discovery requests, except to the extent indicated by the IAS court.

MABSTOA’s attempt to superimpose the provisions governing deposition testimony pursuant to CPLR article 31 onto the statutory preliminary hearing held pursuant to Public Authorities Law § 1212 (5) is without merit. The order appealed from specifically provided for the parties to go forward with depositions, and defendants should have availed themselves of that opportunity. Concur—Rosenberger, J. P., Wallach, Asch, Kassal and Smith, JJ. [See, 147 Misc 2d 469.]