Opinion
December 17, 1964
Order entered October 8, 1964 granting defendant's motion to compel plaintiff to submit to an examination before trial is unanimously reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion is denied. Defendant first applied for the relief ultimately granted in the order appealed from several months after plaintiff filed her statement of readiness, and not within the 20-day period specified in the applicable court rule (New York County Supreme Court Rules, part 1, rule IV, subd. 4, par. [c]). Defendant made three unsuccessful applications before obtaining the order under review herein. Such failure to move within the 20-day period will ordinarily constitute a waiver of the right to take the deposition of the plaintiff ( Price v. Brody, 7 A.D.2d 204). The fact that the trial court, upon the eve of trial, granted plaintiff's request for a long adjournment does not present the unusual and anticipated conditions which would warrant a relaxation of the rule (New York County Supreme Court Rules, part 1, rule IV, subd. 4, par. [g]).
Concur — Botein, P.J., Breitel, Valente, Stevens and Eager, JJ.