Opinion
May 14, 1981
Appeal from an order of the Supreme Court at Special Term, entered August 26, 1980 in Chemung County, which granted a motion made by third-party defendant and fourth-party plaintiff, Midway Steel, Inc. (and joined in by third-party defendants Hall Roofing and Sheet Metal Company, Horseheads B.P.O.E. No. 2297 and fourth-party defendant Campbell Wieland, Inc.), to prohibit the defendant and third-party plaintiff Castleton Manor, Inc., from introducing any evidence on the trial of this action concerning the causes of action which are the basis of this action unless Edwin G. Mooney, Jr., President of Castleton Manor, Inc., submits to an examination before trial at least 10 days before the trial. The order of the Special Term should be affirmed. Section 3.4 of the Rules of the Chief Administrative Judge (22 NYCRR 3.4) governing the practice as to the filing of notes of issue and certificates of readiness provides that the court may upon motion grant permission to conduct necessary pretrial proceedings after the filing of a note of issue and certificate of readiness where "unusual or unanticipated circumstances develop subsequent" to such filing. The failure to complete the examination before trial of the witness Mooney was beyond the control of Midway Steel, Inc. The parties to the action relied upon the assurances of counsel for Castleton Manor, Inc., that the witness would be produced. Additionally, fourth-party defendant Campbell and Wieland, Inc., had moved to strike the note of issue. The motion was denied on February 2, 1980 "without prejudice to a renewal of such motion." In the order, the court also directed that pretrial proceedings be completed by October 15, 1980. In these circumstances, Special Term did not abuse its discretion in granting the instant relief. Order affirmed, without costs. Mahoney, P.J., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.