Ossad v. 125 East Broadway Corp. , 6 A.D.2d 827 ( 1958 )

In an action to recover damages for personal injuries, the appeal is from an order granting a motion to vacate a notice to examine respondent before trial. The notice was served nine months subsequent to joinder of issue, and after respondent had filed a statement of readiness (see Rules App. Div. [2d Dept.], special rule, eff. Jan. 15, 1957, as amd.). Order reversed, with $10 costs and disbursements, and motion denied; the examination to proceed on five days’ notice. Within 20 days after the statement of readiness was filed, appellant moved, pursuant to subdivision (4) of the special rule, to strike the cause from the calendar. That motion was denied “without prejudice to the independent determination of [appellant’s] right to examine [respondent] ”. The denial to appellant of the right to examine the respondent, under the circumstances here presented, was an improvident exercise of discretion. Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.