Byrnes v. Dan's Taxi, Inc.

18 A.D.2d 807, 236 N.Y.S.2d 471, 1963 N.Y. App. Div. LEXIS 5007

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1963
• Status: Published

Opinion

an action to recover damages for personal injury sustained by plaintiff in a collision between his car and a taxicab owned by the corporate defendant and operated by the individual defendant, plaintiff appeals from an order of the Supreme Court, Nassau County, dated September 21, 1962, which denied his motion to vacate defendants’ notice to examine him before trial. Order reversed, and plaintiff’s motion to vacate the notice of examination granted, with $10 costs and disbursements. The said notice was served by defendants subsequent to plaintiff’s filing of a note of issue and statement of readiness. Under the Special Rule of this court for the Supreme Court in all counties within the Second Judicial Department, requiring the filing of a statement of readiness and regulating calendar practice relative thereto, each party to this action is deemed to have assented to the statements contained in the readiness statement and to have waived his right to pursue the pretrial proceedings allowed by the Civil Practice Act and by the Rules of Civil Practice, unless, within 20 days after the filing of the readiness statement he shall have moved to strike the action from the calendar. The excuse offered by defendants for their failure to serve a timely examination notice, namely: that it was due to an inadvertent clerical error, is insufficient in view of the fact that almost three years had elapsed since the joinder of issue (cf. Price v. Brody, 7 A D 2d 204; Levy v. Wexler, 16 A D 2d 688; Romito v. Bourjois, Inc., 16 A D 2d 982; Morrison v. Sam Snead Schools of Golf, 13 A D 2d 986; Cerrone v. S’Doia, 11 A D 2d 350). Beldock, P. J., Kleinfeld, Brennan, Hill and Rabin, J J., concur.