Opinion
April 8, 1980
Appeal from the Onondaga Supreme Court.
Present — Cardamone, J.P., Simons, Schnepp, Doerr and Witmer, JJ.
Order unanimously reversed, with costs, and motion for a protective order granted in accordance with the following memorandum: Plaintiffs are residents of the State of Tennessee. They initiated these actions to recover for personal injuries sustained in a rear end automobile collision occurring in Syracuse, New York, on August 9, 1973. The case first appeared upon the Trial Calendar on March 6, 1978 but was removed to the general docket when the parties failed to proceed to trial. Upon motion of the plaintiffs it was subsequently removed from the docket on April 30, 1979, the court order improperly restoring it to the Day Calendar rather than to the foot of the General Calendar. A date certain was set for trial but subsequently that date was adjourned generally to accommodate the vacation plans of plaintiffs' counsel. Thereafter a motion was made by plaintiffs' Tennessee attorneys, who were not the attorneys of record in this action, to depose plaintiffs' doctor in Memphis, Tennessee. Defendant then moved for a protective order and plaintiffs cross-moved for an order compelling the taking of interrogatories. Special Term denied the motion for a protective order and granted the cross motion. The order is reversed. The delay of the trial of this action is inexcusable. The case having been twice certified as ready for trial by plaintiffs, it was an abuse of discretion to grant the relief requested and hold the action generally while the case remained on the Day Calendar. The motion for a protective order is granted without prejudice to a proper application to take the physician's testimony by deposition or interrogatories, if counsel be so advised, but only after the case has been removed to the general docket. When the case is really ready for trial it may be restored to the General Calendar upon a proper application, but if it is restored, it should take its normal place at the foot of the calendar.