Opinion
October 7, 1957
Donohue Bohl for plaintiffs.
De Graff, Foy, Conway Holt-Harris for Vincent J. Micel and another, defendants.
The plaintiffs move to vacate the notice of defendants Micel to examine them before trial pursuant to article 29 of the Civil Practice Act on several grounds. Only that of untimeliness merits consideration. The note of issue which they filed and served contained a statement pursuant to the special rule of the Appellate Division of this department respecting calendar practice to the effect that there had been a reasonable opportunity to complete the allowable preliminary proceedings, that the parties did not intend to conduct such and that the case was ready for trial. The defendants failed to move pursuant to the rule to strike the cause from the Trial Term Calendar on the ground of its unreadiness for trial based on the claim of the lack of reasonable opportunity to conduct the contemplated examination. Unless the appellate court's rule is to be rendered impotent to fulfill the purposes which prompted its promulgation, their omission must be deemed to constitute an assent to the statements contained in the plaintiffs' note of issue on these subjects and to bar their right to conduct the preliminary proceeding at this stage of the litigation. An agreement between the parties whereby the defendants would refrain from moving to strike the cause from the Trial Term Calendar on condition that it would not be moved by plaintiffs until the preliminary proceeding had been completed would be quite abhorrent both to the letter and the design of the appellate court's rule. Accordingly, the motion is granted.
Submit order.