Besen v. C. P. L. Yacht Sales, Inc.

34 A.D.2d 789, 312 N.Y.S.2d 144, 1970 N.Y. App. Div. LEXIS 4910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1970
• Status: Published

Opinion

In an action to rescind the sale of a boat and to recover damages, defendant Pacemaker Corporation appeals from an order of the Supreme Court, Westchester County, dated April 8, 1969, which granted respondent’s motion for a pretrial examination of appellant’s president. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied. In an examination of a corporate party it is given initially to the corporation to decide the person by whom it will be examined (Lonigro v. Baltimore & Ohio R. R. Co., 22 A D 2d 918). If the examining party concludes that the -person produced has inadequate knowledge, he may move for the examination of a specific person having sufficient knowledge, but in that ease the movant must prove to the court the inadequacy of the person first produced (Arett Sales Corp. v. Island Garden Center of Queens, 25 A D 2d 546; cf. Amos Parrish & Co. v. Applestein, 28 A D 2d 979). Hence, because plaintiff failed to allege specifically the nature of the inadequacy of the witness first produced by defendant Pacemaker Corporation, and the relationship of that inadequacy to plaintiff’s causes of action, plaintiff’s motion should have been denied. -Christ, P. J., Hopkins, Brennan and Benjamin, JJ., concur. (Beldock, P. J., deceased.)