Opinion
October 26, 1973
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Henry, JJ.
Order unanimously modified in accordance with Memorandum and as so modified affirmed, without costs. Memorandum: Plaintiff appeals from an order at Special Term which granted defendant's motion for an oral examination of one Ada Wilson, a witness, who was shown to have been present in decedent's premises at the time of his death which was allegedly caused by defendant's negligence in permitting gas fumes to escape therein. Adequate special circumstances were shown for disclosure by Wilson to satisfy the requirements of CPLR 3101 (subd. [a], par. [4]) but she was not shown to be under defendant's control and subject to examination under CPLR 3101 (subd. [a], par. [1]). The provision of the order which directed plaintiff to assist and co-operate in locating and producing Wilson at the examination before trial is not authorized and the third ordering paragraph which so provides should be stricken ( Gallup v. Dybas, 75 Misc.2d 179). A provision should be added to the order determining that there are adequate special circumstances to require disclosure by Ada Wilson and that plaintiff should disclose her whereabouts to defendant (see Zellman v. Metropolitan Transp. Auth., 40 A.D.2d 248; Wolken v. Howell Co., 41 A.D.2d 545; Sanfilipo v. Baptist Temple, 52 Misc.2d 767), so that it might, if so advised, subpoena her for the purpose of taking her testimony by deposition (CPLR 3106).