Opinion
April 2, 1959
Appeal from the City Court of the City of New York, Bronx County, LAURENCE J. PELTIN, J.
Lieberman Lee ( Carroll Trapani of counsel), for appellant.
Benjamin Sharaga and Harold H. Boxer for respondents.
Rule XXVII of the New York City Court Rules is substantially the same as the Special Rule Respecting Calendar Practice of the New York County Supreme Court. Under that rule, unless the defendant moves within 20 days after the filing of the certificate of readiness to strike the case from the calendar, he waives his right to take the plaintiff's deposition, at least in the absence of special, unusual or extraordinary circumstances ( Price v. Brody, 7 A.D.2d 204). No such circumstances are shown here, and the defendant did not move within 20 days to strike the case from the calendar.
It was, therefore, error to dismiss the complaint unless the plaintiff submitted to examination.
The order should be reversed, with $10 costs and disbursements, and motion denied.
Concur — HOFSTADTER, J.P., STEUER and TILZER, JJ.
Order reversed, etc.