Opinion
February 10, 1961
Donner, Kinoy Perlin for defendant.
Louis J. Castellano, Jr., for plaintiff.
The motion and cross motion are disposed of as follows:
(1) The application to examine the plaintiff before trial by oral examination in Philadelphia is granted. The time and place of examination will be fixed in the order. (2) The application to take from this cause its preferred status on the calendar is denied. (3) The cross motion to examine the defendant before trial is denied, without prejudice to an application at Trial Term, Part I, in accordance with and upon the showing required by subdivision 9 of the Special Rule of the Rules of the Appellate Division, Second Department (Statement of Readiness Rule).
It appears that prior to the filing by plaintiff of his note of issue and statement of readiness on November 16, 1960, the defendant had moved for an examination before trial. By order made after the filing of the note of issue and statement of readiness, Mr. Justice PITTONI denied the motion without prejudice to the right of the defendant to apply for an examination of plaintiff on open commission. No rights of the defendant were waived by the filing by his adversary of the statement of readiness.
The plaintiff, on the other hand, having filed the statement of readiness, is now precluded from conducting an examination before trial of the defendant without leave from Trial Term upon proof of the existence of special circumstances required by the statement of readiness rule.
Although the venue of this action may have been improperly placed in this county and thus a preference under rule 6 of the rules of this court may not have been a matter of right, the remedy of the defendant was to oppose the application within the time prescribed. It failed to do so. It follows that the objection, if valid, has nevertheless been waived. Under the circumstances revealed by the papers, the court will not disturb the present status of the action on the calendar.