Breitbart v. Gerber

14 Misc. 2d 293, 178 N.Y.S.2d 665, 1958 N.Y. Misc. LEXIS 3390

• Court: New York Supreme Court
• Decided: May 7, 1958
• Status: Published

Opinion

Benjamin Brenner, J.

Defendants’ motion to strike the action from the trial calendar is denied and the plaintiff’s motion to vacate defendants’ notice to examine plaintiff before trial is granted. The defendants have not moved within the 20-day period provided by subdivision (5) of the special readiness rule and have unreasonably neglected to seek the examination before trial for some four months after receipt of plaintiff’s bill of particulars, this though plaintiff had written in the meantime asking expedition of the examination if it be sought and waiving his own right to examine defendants if not sought.

True, the courts have adopted a liberal policy to broaden the availability and scope of examinations in order to limit the issues and speed pretrial procedures, but such policy is pursued only if the examination is sought expeditiously after a reasonable opportunity for investigation of facts recited in the bill of particulars. (See companion opinion Ehlin v. Piccola, 14 Misc 2d 251.) The readiness rule permits the exercise of discretion (Moskowitz v. 440 Realty Cory., 13 Misc 2d 748) but an unreasonable delay to complete preliminary proceedings, especially after being prompted to be expeditious, seems to me to constitute a clear waiver thereof. A contrary holding would be prejudicial to plaintiff and it is plainly prejudicial to have a trial date delayed several months, aside from the waste involved in opposing a belated effort to gain added procedural remedies prior to trial.

Submit order.