Zoellner v. Neumann , 1 A.D.2d 941 ( 1956 )

Since it does not appear that defendants will be seriously prejudiced if the relief sought is granted, we feel that in the interests of justice the motion for the issuance of a commission should be granted. We appreciate that defendants are justified in complaining of plaintiff’s delay. It would seem, however, that neither side has made any effort to dispose oi this lawsuit expeditiously. Defendants could have accelerated matters by a motion to dismiss for plaintiff’s failure to prosecute diligently, but instead they were content to let the action remain dormant. In these circumstances and particularly in view of the fact that the testimony sought seems vital to plaintiff’s case, we think the court’s discretion should be exercised so as to permit the deposition even at this late date. Order unanimously reversed and the motion granted, without costs. Settle order on notice. Concur — Peek, P. J., Breitel, Botein, Rabin and Cox, JJ.