Opinion
June 27, 1967
Order entered March 15, 1967, herein appealed from, unanimously reversed, on the law, the facts and in the exercise of discretion, with $30 costs and disbursements to appellant, and plaintiff's motion for a protective order is denied. Nothing appears in the record to warrant deviation from the right of priority of examination normally accorded a defendant (CPLR 3106, subd. [a]; 3 Weinstein-Korn-Miller, N.Y. Civ. Prac. pars. 3106.01, 3106.02; cf. Van Valkenburgh, Nooger Neville v. John F. Rider Publisher, 24 A.D.2d 437). Not only is there an absence of special circumstances which, in the exercise of the court's discretion (CPLR 3103, subd. [a]) might merit a reversal of the normal right of priority, but plaintiff's motion to reverse priority is its first effort to take defendant's deposition (see, also, Fund of Funds v. Waddell Reed, 26 A.D.2d 809; Williams v. Weissberg Corp., 24 A.D.2d 940; Pakter v. Lilly Co., 19 A.D.2d 810; Piel v. Lilly Co., 19 A.D.2d 810). Defendant is entitled to and shall have priority of examination of plaintiff at a time to be agreed upon between the parties or which may, upon application of defendant, be fixed by the court.
Concur — Botein, P.J., Stevens, Tilzer, McNally and McGivern, JJ.