Opinion
December 17, 1968
Order entered July 16, 1968, denying defendants' motion for a protective order unanimously affirmed, with $30 costs and disbursements to respondent. Notice of examinaiton was served December 19, 1967. Defendants obtained several adjournments and it was agreed that examination would be deferred until plaintiff served his bill of particulars. Following the services, the parties were unable to agree upon a date for examination. Plaintiff then served a new motion rescheduling the examination for June 17, 1968. It is in regard to this notice that defendants seek a protective order. We agree with Special Term that the June notice merely fixed a date for examination and that the viable notice was that of December 19. Objections to that notice were waived by the failure to make timely application for a protective order ( Coffey v. Orbachs, Inc., 22 A.D.2d 317). Were it not for this waiver, which renders the notice unassailable in all its features, we would not require the production of certain documents, notably income tax returns, and would probably restrict the examination in other respects. Consequently the current holding is not to be deemed a precedent for sanctioning the production or inspection of such papers where the party to be examined is in a position to contest.
Concur — Steuer, J.P., Capozzoli, McGivern and McNally, JJ.