Opinion
December 22, 1995
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Lawton, J.P., Wesley, Balio, Davis and Boehm, JJ.
Order unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted plaintiff's motion to compel petitioner, a non-party witness, to appear pursuant to subpoena at an examination before trial. The fact that petitioner changed her residence to North Dakota after service of the subpoena did not deprive the court of jurisdiction or plaintiff of his right to depose petitioner (see, Bristol-Myers Squibb Co. v Yen-Shang B. Chen, 186 A.D.2d 999; United Refrigerator Co. v Rose, 19 A.D.2d 809). In the exercise of our discretion, we modify the order on appeal by requiring plaintiff to pay petitioner's reasonable expenses incurred in attending the examination before trial.