Opinion
April 8, 1965
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Noonan and Del Vecchio, JJ.
Order insofar as it denies defendant's motion for a protective order unanimously reversed and motion granted and otherwise order affirmed, without costs of this appeal to either party. Memorandum: Plaintiff's notice to take deposition upon oral examination of defendant's employee and for production of books and records was served 2 1/2 years after plaintiff had filed the first note of issue and certificate of readiness and 5 months after filing a second one. "Where a plaintiff places a cause upon the calendar by the filing of a note of issue and certificate of readiness without having taken the defendant's deposition such action constitutes a waiver of plaintiff's right to take the deposition." ( Price v. Brody, 7 A.D.2d 204, 205. See, also, Cerrone v. S'Doia, 11 A.D.2d 350.)