Opinion
November 4, 1983
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The order of May 27, 1983 is modified by striking the ninth decretal paragraph. Special Term abused its discretion by directing that defendant's deposition be taken before plaintiff was required to answer the fault interrogatories. By failing to reschedule defendant's deposition after the automatic stay was lifted, plaintiff waived his right to demand a priority in discovery and defendant's priority was reinstated (see Clifton Steel Corp. v County of Monroe Public Works Dept., 74 A.D.2d 715).