Hakim Consultants Ltd. v. Formosa Ltd.

175 A.D.2d 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 1991
• Status: Published

Opinions

— Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 20, 1990, which denied defendants’ motion for a protective order and directed plaintiff’s depositions of defendants to proceed prior to the deposition by defendants of plaintiff, reversed, on the law, the facts, and in the exercise of discretion and the defendants’ motion for a protective order granted, without costs.

In this action by a minority shareholder for breach of a shareholders’ agreement, served on or about September 12, 1990, defendants, on or about October 12, 1990, answered and noticed the plaintiff for deposition on November 15, 1990. Plaintiff’s principal is a resident of Israel and sought to have the examination take place in mid-December 1990. Plaintiff also noticed the defendants for depositions prior to that of the plaintiff. The motion court denied the defendants’ motion for a protective order and scheduled the depositions, giving plaintiff priority. In the absence of special circumstances, priority of deposition belongs to the defendant if a notice for examination is served with the answer. (CPLR 3106 [a]; Bucci v Lydon, 116 AD2d 520 [1986].) The alleged breach of a shareholder’s fiduciary duty and the fact that plaintiff’s principal is a resident of Israel do not, as plaintiff contends, constitute special circumstances here. Concur — Rosenberger, J. P., Wallach, Ross and Smith, JJ.