Williams v. H. R. Weissberg Corp.

24 A.D.2d 940, 265 N.Y.S.2d 48, 1965 N.Y. App. Div. LEXIS 2847

Opinion

Order entered August 9, 1965, directing defendant, to appear and submit to oral examination, unanimously modified, on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, to the extent of requiring the bill of particulars to be served prior to the examination before trial of defendant, and, as so modified, affirmed. Plaintiff noticed his examination before defendant answered purportedly pursuant to CPLR 3106. He was enabled to do this because defendant obtained an extension of time to answer. Thus, 20 days elapsed since service of the complaint. Plaintiff should not be allowed by this tactic to. overcome defendant’s prior right to examine or to have a bill of particulars'. In this connection the 20-day provision is the equivalent of the time .to answer. (Mastro Plastics Corp. v. Emenee Inds., N. Y. L. J.,. April 17, 1964, p. l4, col. 4.) Settle order on notice. Concur — Valente, J. P., McNally). Eager and Steuer, JJ.