Dubow v. Ames Home Publishing Co.

2 A.D.2d 675, 152 N.Y.S.2d 875, 1956 N.Y. App. Div. LEXIS 4833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1956
• Status: Published

Opinion

Both branches of plaintiff’s motion should have been denied as premature and in violation of the well-established rule that applications for pretrial examinations and discovery and inspection are not to be made until after joinder of issue. The service of defendants’ answer before the return day of the motion did not validate the improperly initiated application (Punia v. Dry Dock Sav. Bank, 280 App. Div. 431). Plaintiff’s moving papers are also fatally defective in that they violate the rules against items which are sweeping in scope and unnecessarily prolix and repetitious. They have all the earmarks of a studied attempt to make the examination as broad and burdensome as possible, instead of reducing the ease and examination to essentials. Order unanimously reversed and the motion denied in all respects, with $20 costs and disbursements to the appellants, without prejudice to a renewal of the motion for an examination before trial upon proper papers. Plaintiff may apply for a discovery and inspection after the completion of the pretrial examinations if it develops that the books and records produced in connection with such examinations are inadequate. Concur — Peck, P. J., Breitel, Frank and Valente, JJ.