Opinion
January 15, 1973
In an action inter alia by plaintiff Midas, Inc., an Illinois corporation, for goods sold and delivered and upon a guarantee, defendants appeal from so much of an order of the Supreme Court, Nassau County, dated January 13, 1972, as granted to a limited degree plaintiffs' motion for a protective order with respect to defendants' notice to examine plaintiffs before trial. Order modified (1) by striking therefrom the words "no less than 20 days before trial" (the time for holding the examination, if in Nassau County) and substituting therefor the words "no more than 20 days before the commencement of the trial" and (2) by striking therefrom the words "one year" (as to the subject of the conduct of business in New York by plaintiff Midas, Inc.) and substituting therefor the words "three years". As so modified, order affirmed insofar as appealed from, without costs. In our opinion, defendants' right to establish their first affirmative defense against plaintiff Midas Inc., i.e., that said plaintiff has not paid the State of New York all fees, penalties and franchise taxes for the time said plaintiff was doing business in New York, was unduly hindered by the provision in the order under review limiting production of documents relating to said plaintiff's conduct of business in New York to those relating to the period of one year prior to the commencement of the action. Rabin, P.J., Munder, Martuscello, Latham and Shapiro, JJ., concur.