Kay v. Shopwell, Inc.

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

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.