Opinion
June 25, 1963
Two orders, entered on December 24, 1962, denying defendant's motion to vacate plaintiff's notice of examination before trial, denying defendant's motion to strike plaintiff's second amended complaint for failure to appear for examination before trial, and granting plaintiff priority of examination, plaintiff's examination to proceed after service of its further bill of particulars, modified on the law and as a matter of discretion to provide that defendant's examination of plaintiff proceed at a date to be fixed in the order; that plaintiff's examination follow defendant's examination provided plaintiff has complied with the order herein directing service of its further bill of particulars, and, as so modified, affirmed, with $20 costs and disbursements to appellant. We are very loath to disturb the exercise of discretion by Special Term in a detail of procedure such as is presented here. However, we must conclude that the dilatory tactics indulged in by the plaintiff create a special situation requiring a change in the usual order of procedure of examination before trial (New York County Supreme Court Rules, rule XI, subd. 5). The disposition at Special Term would make defendant's examination dependent on plaintiff's completing its examination, and the latter, in turn, dependent on plaintiff's giving the particulars ordered. As plaintiff has shown no disposition to comply with earlier orders, but rather to evade them, the order of examination could enable plaintiff, by continuing its tactics, to so delay defendant's preparation as to cause serious embarrassment.
Concur — Rabin, McNally and Steuer, JJ.; Breitel, J.P., and Eager, J., dissent and vote to affirm. Settle order on notice.