National Bank of North America v. Systems Home Improvement, Inc.

57 A.D.2d 596, 393 N.Y.S.2d 744, 1977 N.Y. App. Div. LEXIS 11598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1977
• Status: Published

Opinion

In an action in which plaintiff obtained a judgment of foreclosure and in which the subject property was sold pursuant thereto, and in which plaintiff-respondent now seeks a deficiency judgment, these consolidated appeals are from (1) an order of the Supreme Court, Queens County, dated February 9, 1977, which, inter alia, directed that certain defendants appear and be examined and (2) an order of the same court, dated February 28, 1977, which denied defendants-appellants’ motion to vacate certain notices of deposition served by plaintiff upon appellants’ attorneys and subpoenas served upon certain third-party witnesses, and directed that all examinations be completed prior to the date set for trial. Orders affirmed, with one bill of $50 costs and disbursements. All examinations before trial to be had in this action shall proceed at such times and places as shall be fixed in written notices of not less than 5 nor more than 10 days, which notices are to be given within 10 days after the entry of the order to be made hereon, or at such times and places as the parties hereto and the witnesses to be examined may agree. It is directed that this action proceed to trial forthwith upon the conclusion of the examinations before trial. Disclosure, under the circumstances revealed here, where the possibility of fraud has been asserted, is demanded under •the liberal construction of CPLR 3101 (subd [a]) as enunciated in Allen v Crowell-Collier Pub. Co. (21 NY2d 403). Appellants’ reliance upon a written stipulation as to pretrial procedures is misplaced. That document does not provide the shield which they assert. Hopkins, Acting P. J., Margett, Damiani and Rabin, JJ., concur.