Opinion
June 16, 1970
Appeal from an order entered March 23, 1970 denying motion of defendants-appellants to vacate plaintiff's notice of examination before trial is unanimously dismissed as moot, without costs and without disbursements, in view of our disposition of the companion appeal ( Leiserson v. Mabro Int., 34 A.D.2d 925). Should leave be granted to serve an amended complaint, and plaintiff, if so advised, applies for priority in respect of the examination before trial of the defendants, he shall be required to establish special circumstances. The affidavit of one of plaintiff's attorneys avers: "Obviously, in this type of action there are many important facts which are not known to plaintiff but are solely within the knowledge of the defendants." Said allegation by one without personal knowledge of the facts is vague, conclusory and devoid of factual demonstration of the facts sought and plaintiff's lack of knowledge thereof.
Concur — McGivern, J.P., Markewich, McNally and Tilzer, JJ.