Cooper v. Swallow

55 A.D.2d 752, 389 N.Y.S.2d 470, 1976 N.Y. App. Div. LEXIS 15531

Opinion

Appeal from an order of the Supreme Court, entered January 19, 1976 in Albany County, which granted a motion by plaintiff to compel an examination before trial of defendant Donald J. Swallow. This is an appeal from an order allowing an examination before trial of one of the defendants more than one year after a Trial Term note of issue and statement of readiness had been filed by plaintiff (22 NYCRR 861.10). Although as a general rule the statement of readiness rule should be rigidly enforced (Wahrhaftig v Space Design Group, 33 AD2d 953), in a case such as the instant wrongful death action, in which the facts are peculiarly within the opposing party’s knowledge, a court is justified in exercising its discretion and relaxing the rigid enforcement of the rule (Farrell v Reed, 16 AD2d 709; see, also, 68 Fifth Ave. Rest. v 59 Fifth Rest. Corp., 37 AD2d 780; D’Angelo v Goddard, 29 AD2d 333). We should not disturb such an exercise of discretion by the trial court in this case. Order affirmed, without costs. Koreman, P. J., Greenblott, Kane, Larkin and Herlihy, JJ., concur.