McDonald v. Gore Mt. Ski Lift Corp.

30 A.D.2d 931, 293 N.Y.S.2d 553, 1968 N.Y. App. Div. LEXIS 3294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1968
• Status: Published

Opinion

Memorandum by the Court.

Appeal from an order of the Supreme Court at Special Term entered January 15, 1968 in Albany County granting defendant’s motion for an examination before trial of James E. McDonald as a witness. Examinations before trial are permitted of “ any person where the court on motion determines that there are adequate special circumstances.” (CPLR 3101, subd. [a], par. [4].) Thus, examinations of a witness are permitted when it is established that the witness is hostile, or where .the witness has special or exclusive knowledge of the facts in issue. (Southbridge Finishing Co. v. Golding, 2 A D 2d 430.) In support of the motion the defendant submitted only an affidavit by an attorney stating on information that the said James E. McDonald was a witness to the accident and had special knowledge of the facts and circumstances surrounding its happening. This .affidavit, standing alone, is insufficient to sustain the burden upon the party seeking the examination of establishing special circumstances to entitle it' to the examination. (Posner v. Morgenstern, 19 A D 2d 811; Di Geronimo v. Plotnick, 39 Misc 2d 497.) The motion papers are in other respects deficient in meeting the general and well understood requirements in eases such as this. Order reversed, on the law and the facts, without prejudice to a renewal of the motion upon a proper showing of the facts, with costs to appellant. Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.