Opinion
June 26, 1969
Order entered December 9, 1968, which denied defendants' motion for a protective order pursuant to CPLR 3103 (subd. [a]) to vacate a notice to take the deposition of defendants, Greyhound Lines, Inc., and Alvin Riley Creason, unanimously reversed on the law and the facts and in the exercise of discretion, without costs or disbursements, and the motion granted without prejudice to an application by plaintiffs for the taking of the testimony of said defendants upon written interrogatories or open commission in California at the option of the plaintiffs, or, if the bus driver is to be a witness or appear at the trial, then, at plaintiff's option, the examination shall be held here five days before the trial. In the special circumstances of this case, it is appropriate that examination of the appellants should be had in California. The parties shall pay their respective expenses of such an examination, and the expenses so incurred are to be taxed as a disbursement by the party ultimately succeeding in the action. (See Osborne v. Miller, 30 A.D.2d 654; Walborsky v. Wolf, 28 A.D.2d 1120.)
Concur — Stevens, P.J., Eager, Tilzer, Markewich and Steuer, JJ.