Opinion
September 20, 1976
In an action to recover damages for personal injuries, etc., on the grounds of malpractice and breach of warranty, defendant Upjohn appeals from so much of an order of the Supreme Court, Kings County, dated June 2, 1976, as, in directing that discovery proceedings against the said defendant be conducted in Kalamazoo, Michigan, provided that Upjohn pay all proper transportation and lodging expenses to all other parties appearing at such discovery proceedings. Order reversed insofar as appealed from, without costs or disbursements; and it is directed that the parties shall pay their respective expenses in connection with said discovery proceedings, and that the party ultimately succeeding in the action may tax and recover the expenses incurred as a taxable disbursement. Upon the facts, it was an improper exercise of discretion to require defendant Upjohn to pay the expenses of the discovery proceedings in the first instance (McLaughlin v G.D. Searle, Inc., 38 A.D.2d 810; Friedman v Greyhound Lines, 32 A.D.2d 772). Martuscello, Acting P.J., Latham, Margett, Rabin and Hawkins, JJ., concur.