Kay v. Shopwell, Inc.

Appellate Division of the Supreme Court of New York

Kay v. Shopwell, Inc.

63 A.D.2d 694, 404 N.Y.S.2d 888, 1978 N.Y. App. Div. LEXIS 11599

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1978

StatusPublished

Cited by2 cases

This text of 63 A.D.2d 694 (Kay v. Shopwell, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kay v. Shopwell, Inc., 63 A.D.2d 694, 404 N.Y.S.2d 888, 1978 N.Y. App. Div. LEXIS 11599 (N.Y. Ct. App. 1978).

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Opinion

In an action, inter alia, to recover damages for false arrest, plaintiff appeals from an order of the Supreme Court, Westchester County, entered July 15, 1977, which denied his motion for a protective order vacating defendant’s demand for an examination before trial. Order reversed, with $50 costs and disbursements to plaintiff, and motion granted, but without prejudice to a motion by defendant, if it be so advised, for an examination before trial of plaintiff, specifying those areas upon which plaintiff is to be deposed orally and which are not adequately covered by the written interrogatories previously served by defendant and responded to by plaintiff. Ordinarily, a defendant having first proceeded to depose by written interrogatories would not be barred from taking a subsequent oral deposition (Katz v Posner, 23 AD2d 774). However, under the unusual circumstances presented, involving plaintiff’s mental condition, when coupled with the extensive written interrogatories previously furnished on his behalf, to deny plaintiff’s motion would be to his "disadvantage” and "prejudice” (see CPLR 3103, subd [a]), unless the examination is limited as indicated, thus obviating any question of abuse. Martuscello, J. P., Suozzi, Rabin and Hawkins, JJ., concur.

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In an action, inter alia, to recover damages for false arrest, plaintiff appeals from an order of the Supreme Court, Westchester County, entered July 15, 1977, which denied his motion for a protective order vacating defendant’s demand for an examination before trial. Order reversed, with $50 costs and disbursements to plaintiff, and motion granted, but without prejudice to a motion by defendant, if it be so advised, for an examination before trial of plaintiff, specifying those areas upon which plaintiff is to be deposed orally and which are not adequately covered by the written interrogatories previously served by defendant and responded to by plaintiff. Ordinarily, a defendant having first proceeded to depose by written interrogatories would not be barred from taking a subsequent oral deposition (Katz v Posner, 23 AD2d 774). However, under the unusual circumstances presented, involving plaintiff’s mental condition, when coupled with the extensive written interrogatories previously furnished on his behalf, to deny plaintiff’s motion would be to his "disadvantage” and "prejudice” (see CPLR 3103, subd [a]), unless the examination is limited as indicated, thus obviating any question of abuse. Martuscello, J. P., Suozzi, Rabin and Hawkins, JJ., concur.

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Bluebook (online)

63 A.D.2d 694, 404 N.Y.S.2d 888, 1978 N.Y. App. Div. LEXIS 11599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kay-v-shopwell-inc-nyappdiv-1978.

Opinion

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