Goldenstein v. Upjohn Co. , 60 A.D.2d 568 ( 1977 )

In an action to recover damages for personal injuries, defendant Upjohn Co., Inc., appeals from sp much of (1) an order of the Supreme Court, Kings County, dated February 8, 1977, as, upon its motion for a protective order, directed it to appear for examination before trial in New York City by an officer, agent or employee having knowledge of the facts and to produce such of its records for use at the examination as are relevant and germane thereto, and (2) a further order of the same court, dated March 30, 1977, as, upon reargument, in effect, adhered to the original determination. Appeal from the order dated February 8, 1977 dismissed as academic, without costs or disbursements. That order was superseded by the order made upon reargument. Order dated March 30, 1977 affirmed insofar as appealed from, without costs or disbursements. The examination shall proceed at the place designated in the order under review, at a time to be fixed by plaintiffs in a written notice of not less than 10 days, or at such other time as the parties may agree. The appellant failed to establish that the holding of the examination before trial in New York City would impose upon it an undue hardship or an unreasonable inconvenience or expense, or that it would be prejudiced thereby (see Abrams v Vaughan & Bushnell Mfg. Co., 37 AD2d 833). Further, the orders appealed from provide that the plaintiffs-respondents may move the examination to the office of the appellant in Kalamazoo, Michigan, if it is found that the volume of papers to be produced for use thereat is so extensive as to make it not feasible to hold the examination in New York City. Margett, J. P., Damiani, Shapiro and Titone, JJ., concur.