Opinion
December 29, 1995
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
The Supreme Court properly denied the defendants' respective cross motions to dismiss the complaint based upon the 101-year old plaintiff's inability to participate in a pretrial deposition (see, CPLR 3126; cf., Miller v United Parcel Serv., 143 A.D.2d 820). Under the circumstances of this case, the plaintiff's inability to participate in a pretrial deposition due to her ill health does not entitle the defendants to dismissal of her complaint. The record clearly reveals that the plaintiff's counsel sought to have the plaintiff deposed almost immediately after she brought this action. However, the defendants' ensuing motions delayed the plaintiff's deposition for more than one year. In that one year, the plaintiff became increasingly infirm and, as the result of a fall, was unable to participate in a pretrial deposition. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.