Arena Construction Co. v. Town of Harrison , 81 A.D.2d 570 ( 1981 )

— In an action to recover damages for breach of contract, the appeals are from two orders of the Supreme Court, Westchester County, both entered June 23, 1980, which (1) denied the defendant’s motion to dismiss the amended complaint and (2) directed the defendant to appear for a pretrial examination by its former architect. Order denying dismissal of the amended complaint affirmed, without costs or disbursements. Order directing defendant to appear at the pretrial examination by its former architect reversed, without costs or disbursements, the branch of plaintiff’s motion which seeks leave to take the pretrial deposition of the architect, Lothrop Associates, by Arthur Clements, is granted and the motion is otherwise denied. The defendant should not have been compelled to appear by its former architect, since the contractual relationship between them terminated in 1977. In view of the special circumstances present in this case, Special Term should have granted the alternative relief requested by the plaintiff and granted leave to examine the architect as a witness pursuant to CPLR 3101 (subd [a], par [4]) (see Rensselaer Polytechnic Inst. v Machnick Constr. Co., 19 AD2d 677). Hopkins, J.P., Laser, Gibbons and Cohalan, JJ., concur.