Fielding v. S. Klein Department Stores, Inc.

44 A.D.2d 668, 354 N.Y.S.2d 438, 1974 N.Y. App. Div. LEXIS 5221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered May 3, 1972, directing that plaintiff’s deposition be taken on written interrogatories, unanimously modified, on the law, on the facts and in the exercise of discretidn, to the extent of providing that the examination of plaintiff shall be taken by written interrogatories and by oral examination in New York not less than 10 days prior to trial or, at defendants’ election, by open commission. If defendants elect the latter method, the parties shall pay their respective expenses which shall be taxed as costs by the prevailing party. The order is otherwise affirmed, without costs and without disbursements. On the record before us it appears that plaintiff is a 70-year-old retired painter who now resides in San Diego, California. To require his appearance now for pretrial disclosure would be burdensome. The alternatives provided should, in our opinion, meet defendants’ needs without creating any undue hardship to plaintiff. Concur — Markewich, J. P., Kupferman, Murphy, Tilzer and Capozzoli, JJ.