Knaus v. Peschel

111 A.D.2d 748, 489 N.Y.S.2d 779, 1985 N.Y. App. Div. LEXIS 49988

Opinion

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated December 29, 1983, which denied their motion to strike plaintiffs’ note of issue and statement of readiness upon the ground that they had waived their right to depose plaintiffs.

Order modified by adding a provision thereto granting defendants’ motion to the extent of permitting examinations before trial of the plaintiffs. As so modified, order affirmed, without costs or disbursements. The examinations before trial shall proceed at Special Term, Part II, in the Queens County General Courthouse at a time to be fixed in a written notice of not less than 10 days, to be given by appellants, or at such other time and place as the parties may agree. The notice shall be served within five days after service upon appellants of a copy of the order to be made hereon, with notice of entry, and the examinations shall be completed within 30 days after service of notice thereof by appellants.

Defense counsel’s conduct, under the circumstances herein, did not constitute a waiver of defendants’ right to depose plaintiffs. Even though this court finds that further disclosure by way of examinations before trial is warranted, there is no need to strike the case from the Trial Calendar (Mangiaracina v Abatemarco, 87 AD2d 585; Cohen v Heine & Co., 39 AD2d 563). Mangano, J. P., Gibbons, Bracken and Kunzeman, JJ., concur.