Fitzgerald v. South Norwalk Trust Co.

5 A.D.2d 863, 172 N.Y.S.2d 535, 1958 N.Y. App. Div. LEXIS 6604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1958
• Status: Published

Opinion

— Order denying plaintiff’s motion to vacate defendant’s notice to examine plaintiff before trial modified, in the exercise of discretion, to condition the denial of the motion on the stipulation by defendant that it pay the costs and disbursements of this action and of this appeal to plaintiff within 10 days from the service of an order herein with notice of entry thereof, hut in the event that defendant should decline to so stipulate then the order is reversed, and the motion granted, on the law and in the exercise of discretion, with $20 costs and disbursements of this appeal. The record makes it clear that defendant is without valid excuse in having failed to seek examination before trial of plaintiff before the filing by plaintiff of the certificate of readiness, in accordance with the special rule respecting calendar practice, and defendant is also without valid excuse, in having failed promptly after the retention of trial counsel one year ago to have sought such examination before trial. On this basis we would he disposed to agree with plaintiff that the notice should have been vacated. However, the nature of the case is such that in the interests of justice it is desirable that the plaintiff be examined before trial, the accident being one the circumstances of which appear to be peculiarly in the knowledge of plaintiff. But in that event defendant should bear the burden of its neglect and pay the costs and disbursements of this action and this appeal from commencement of the action to date, if it persists in seeking the examination before trial. Settle order.

Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.