Summary
In 1417 Bedford Realty Co. v Sun Oil Co. (21 A.D.2d 684 [2d Dept 1964]), the plaintiff was allowed to enter the defendant's premises to test to determine depth of prior excavation.
Summary of this case from Rhoda C. v. Amos C.Opinion
May 18, 1964
In an action for an injunction and to recover damages for injury to real property allegedly sustained as a result of the negligence of the defendant Sun Oil Company, Inc., in excavating upon its own property immediately adjacent to plaintiff's premises, in violation of the Administrative Code of the City of New York (§ C26-385.0), said defendant appeals from an order of the Supreme Court, Kings County, dated December 18, 1963, which granted plaintiff's motion for a discovery and inspection pursuant to statute (CPLR 3120, subd. 2); which authorized plaintiff to "enter upon [said] defendant's premises and take borings, tests and measurements to determine the depth" of the prior excavation thereon; and which conditioned such relief upon the furnishing by plaintiff of a $5,000 bond (to be approved by a Justice of the court) to indemnify the defendant owner of the premises against any damage resulting from such discovery. Order modified by increasing from $5,000 to $10,000 the amount of the said bond. As so modified, the order is affirmed, without costs. The discovery and inspection to the extent prescribed shall proceed within 40 days after entry of the order hereon upon 7 days' written notice by plaintiff or on such date or dates as the parties may mutually agree by written stipulation, provided that the said bond shall have been approved by a Justice of the Supreme Court and that a copy thereof shall have been served upon defendant prior to or together with such notice or stipulation. Under the circumstances here, the Special Term properly exercised its discretion in directing such disclosure pursuant to the statute (CPLR 3120, subd. 2). However, in our opinion the amount of the bond as fixed by the Special Term was inadequate to the extent indicated. Beldock, P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.