La Manna Concrete, Inc. v. Friedman , 34 A.D.2d 576 ( 1970 )

In an action to recover upon a contract ¡ and an account stated, defendants appeal from a judgment of the Supreme Court, Westchester County, entered July 2, 1969, in favor of plaintiff against them pursuant to an order of said court entered June 13, 1969 which granted plaintiff’s motion to strike out defendants’ answer on the ground of their willful failure to appear for examination before trial. Judgment and said order reversed, on the law and the facts, with $10 costs and disbursements to respondent against appellants; plaintiff’s said motion granted to the extent of directing defendants to comply with the prior order of said court dated April 2, 1969, which directed the examination to continue before a Referee who was designated therein; and defendants’ answer reinstated. The examination shall proceed at the place set forth in the order of April 2, 1969 at a time to be fixed in a written notice of not less than 10 days, to be given by plaintiff. This determination is conditioned upon counsel for defendants paying $250 to plaintiff’s counsel for their fees, in addition to the costs and disbursements of this appeal, within 10 days after taxation of said costs and disbursements of the appeal. We are of the opinion that the conduct of defendants and their counsel was not so willful and com tumacious as to warrant the striking out of defendants’ answer under CPLR 3126. However, the conduct of counsel for defendants shows such a lack of appreciation for proper procedure and careful handling of this matter that it warrants the imposition upon them of the additional expenses that have been incurred by counsel for plaintiff. We note that the deposition of an adverse party may not be taken before a person in the employ of an attorney for the party who seeks the deposition (CPLR 3113). We are further constrained to call attention to the proper practice before this court in giving citations to legal authorities. The citation must be to the official reports unless the case is not listed therein. Hopkins, Acting P. J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.