Shaw v. Hospital Ass'n

New York Supreme Court

Shaw v. Hospital Ass'n

57 Misc. 2d 461, 292 N.Y.S.2d 984, 1968 N.Y. Misc. LEXIS 1280

DecidedJuly 30, 1968

StatusPublished

This text of 57 Misc. 2d 461 (Shaw v. Hospital Ass'n) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shaw v. Hospital Ass'n, 57 Misc. 2d 461, 292 N.Y.S.2d 984, 1968 N.Y. Misc. LEXIS 1280 (N.Y. Super. Ct. 1968).

Pincite

Opinion

Lawrence H. Cooke, J.

Plaintiffs having served a notice to take the testimony of plaintiff Helen Shaw upon oral examination, defendant moves for a protective order vacating the notice on the ground that such disclosure is improper since a note of issue was served over one year prior thereto. In opposition plaintiffs have submitted proof indicating that Helen Shaw, now 82 years of age, suffered a heart attack on or about July 7, 1968, that she is now confined to a hospital, that her condition is serious and that her prognosis is guarded.

While it has been made clear that the statement of readiness rule will not be departed from in the absence of a showing of special, unusual or extraordinary circumstances warranting the exercise of the court’s discretion (Jacobs v. Peress, 23 A D 2d 483), upon a showing of unusual and unanticipated conditions, which the courts have been reluctant to find, a party may be permitted to use disclosure devices even after a statement of readiness has been filed (Shea v. Pellicano, 29 A D 2d 840; Pioneer Jewelry Corp. v. All Continent Corp., 24 A D 2d 436; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3402.12). An unusual and unanticipated situation has been shown here.

Although the Civil Practice Law and Rules do not explicitly provide for the taking by a party of his own testimony, in the light of the liberal construction to be accorded to it, such a deposition may be taken where, as here, there is reason to anticipate that the party will be unable to be present at the trial to testify (CPLR 104; 3101, subd. [a], par. [1]; 3106, subd. [a]; 3107; Lapensky v. Gordon, 41 Misc 2d 958; Cohen v. H. C. & H. [462]*462Associates, N. Y. L. J., March 9, 1967, p. 18, col. 4; Devoe v. King Kullen Grocery, 35 Misc 2d 1026; Kall v. Karelas, 30 Misc 2d 556; 7 Carmody-Wait 2d, New York Practice, § 42:79; Carmody-Forkosch, New York Practice [8th ed.], p. 561, n. 28; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3101.01, 3101.22; 38 St. John’s Law Review, pp. 433-435).

Motion denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Lawrence H. Cooke, J.

Plaintiffs having served a notice to take the testimony of plaintiff Helen Shaw upon oral examination, defendant moves for a protective order vacating the notice on the ground that such disclosure is improper since a note of issue was served over one year prior thereto. In opposition plaintiffs have submitted proof indicating that Helen Shaw, now 82 years of age, suffered a heart attack on or about July 7, 1968, that she is now confined to a hospital, that her condition is serious and that her prognosis is guarded.

While it has been made clear that the statement of readiness rule will not be departed from in the absence of a showing of special, unusual or extraordinary circumstances warranting the exercise of the court’s discretion (Jacobs v. Peress, 23 A D 2d 483), upon a showing of unusual and unanticipated conditions, which the courts have been reluctant to find, a party may be permitted to use disclosure devices even after a statement of readiness has been filed (Shea v. Pellicano, 29 A D 2d 840; Pioneer Jewelry Corp. v. All Continent Corp., 24 A D 2d 436; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3402.12). An unusual and unanticipated situation has been shown here.

Although the Civil Practice Law and Rules do not explicitly provide for the taking by a party of his own testimony, in the light of the liberal construction to be accorded to it, such a deposition may be taken where, as here, there is reason to anticipate that the party will be unable to be present at the trial to testify (CPLR 104; 3101, subd. [a], par. [1]; 3106, subd. [a]; 3107; Lapensky v. Gordon, 41 Misc 2d 958; Cohen v. H. C. & H. [462]*462Associates, N. Y. L. J., March 9, 1967, p. 18, col. 4; Devoe v. King Kullen Grocery, 35 Misc 2d 1026; Kall v. Karelas, 30 Misc 2d 556; 7 Carmody-Wait 2d, New York Practice, § 42:79; Carmody-Forkosch, New York Practice [8th ed.], p. 561, n. 28; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3101.01, 3101.22; 38 St. John’s Law Review, pp. 433-435).

Motion denied.

Cite This Page — Counsel Stack

Bluebook (online)

57 Misc. 2d 461, 292 N.Y.S.2d 984, 1968 N.Y. Misc. LEXIS 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-hospital-assn-nysupct-1968.

Opinion

Related

Cite This Page — Counsel Stack