Opinion
January 29, 1990
Appeal from the Supreme Court, Suffolk County, Gowan, J., Cohalan, J.
Ordered that the order dated August 22, 1989 is reversed, on the facts and as a matter of discretion, and the motion is granted; and it is further,
Ordered that the defendant's appeal from the order dated October 18, 1989 is dismissed as academic; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
We conclude that the plaintiff's pretrial motion to compel the defendant to permit its expert to inspect the two embroidery machines which are the subject of this action should have been granted. The requested inspection is necessary in order to permit the plaintiff an opportunity to establish at the retrial on the issue of damages the value of the machines as well as their fair market rental value (see, Colonial Funding Corp. v. Bon Jour Intl., 148 A.D.2d 654). In view of the unique procedural circumstances of this case, we conclude that the plaintiff established that "unusual [and] unanticipated circumstances develop[ed]" subsequent to the filing of the statement of readiness warranting this further pretrial discovery ( 22 NYCRR 202.21 [d]; see also, Di Maria v. Coordinated Ranches, 114 A.D.2d 397; Gerardi v. Incorporated Vil. of Val. Stream, 111 A.D.2d 741). Mollen, P.J., Mangano, Kunzeman and Kooper, JJ., concur.