Connair v. Weinstein , 198 Misc. 1043 ( 1950 )

Taylob, J.

The defendants Weinstein have moved to vacate a notice of examination before trial on the grounds that it is unnecessary, that the matters upon which it is sought are immaterial and improper and that the plaintiff is guilty of loches.

The action is in negligence predicated on an automobile accident which happened in the city of Albany on December 13, 1948. The summons and complaint were served on these defendants on February 11, 1949, who thereafter answered on or about March 2, 1949. The action was noticed for trial at the April, 1949, Trial Term of this court for Albany County and is presently on the day calendar.

The propriety of the notice of examination was settled in this department in the case of Guy v. Stanley-Mark Strand Corp. (272 App. Div. 990).

Lapse of time between the commencement of the action and the seeking of the examination without a showing of disadvantage and prejudice to the defendants is not a bar to its being had. (Israelson v. Gersing, 234 App. Div. 706; Schwartz v. Taylor & Co., 225 App. Div. 899; Keilly v. Schamarock, 266 App. Div. 692.) There is no such showing here.

The motion is denied.

If the parties cannot agree on the time and place of such examination and before whom the same shall be conducted, settle order on notice.

Submit order..