Opinion
May 7, 1981
Order, Supreme Court, New York County, entered October 3, 1980, which granted a protective order to the extent of directing plaintiff to appear for oral examination 25 days prior to trial, unanimously modified, on the law, on the facts, and in the exercise of discretion, by directing plaintiff to appear for examination in New York City on an agreed date not later than 90 days from the date of this order and, as modified, affirmed, without costs. Plaintiff Mack, a former employee of defendant J.C. Penney Co., Inc., seeks damages because defendant denied her disability benefits for her pregnancy in violation of section 296 of the Human Rights Law. Plaintiff has also made a motion seeking class action certification under CPLR article 9; that motion is sub judice. Although plaintiff's attorney asserts that her client is indigent and on public assistance in South Carolina, the overriding consideration remains the fact that plaintiff has invoked the jurisdiction of New York State. Thus, she must stand ready to be examined in this State. Moreover, the plaintiff cannot validly contend upon this motion that she lacks financial resources when she is simultaneously attempting to show that she will fairly and adequately protect the class (CPLR 901, subd a, par 4). Therefore, the plaintiff is directed to appear for examination in New York City on an agreed date not later than 90 days from the date of this order. Settle order.
Concur — Murphy, P.J., Kupferman, Birns, Markewich and Silverman, JJ.