ZVI Englander & Co.v.Leslie Kleyman Corp.

Appellate Division of the Supreme Court of New York, First DepartmentJan 28, 1971
36 A.D.2d 529 (N.Y. App. Div. 1971)

January 28, 1971

Order of the Supreme Court, New York County, entered October 27, 1970, denying plaintiff's motion for the issuance of a commission to take the depositions of three nonparty witnesses in Israel, unani- the motion granted with respect to the witnesses Heberlon, Ltd., and Alda. Appellant shall recover of respondent $30 costs and disbursements of this appeal. In view of the previous priority determination, the defendant, if so advised, may take the deposition of the plaintiff in Israel by written interrogatories or open commission immediately prior to the taking of the deposition of these two witnesses, reserving its right, in addition, to complete such deposition by oral examination 10 days before the trial, as originally determined in the previous orders of this court. (See, in general, Ascona Cie, Anstalt v. Horn, 32 A.D.2d 755; Bosurgi v. Chemical Bank N.Y. Trust Co., 30 A.D.2d 950; Osborne v. Miller, 30 A.D.2d 654; Pakter v. Lilly Co., 19 A.D.2d 810; Walborsky v. Wolf, 28 A.D.2d 1120; Bodenstadt v. Parke, Davis Co., 1 A.D.2d 670.) This is an action commenced in January, 1968 by an Israeli corporation to recover the sum of $20,000 as brokerage commission on the basis that it acted as a broker to obtain supplies in Israel of certain yarn for the defendant. It is claimed that plaintiff secured Heberlon, Ltd., of Israel to supply the defendant's needs. It is alleged that the defendant's representative in Israel, Amos Shavit, participated in the contract made by the defendant with Heberlon, Ltd., and that Heberlon paid a commission in connection with the sales to an organization known as Alda in Israel. The answer is a general denial and the Statute of Frauds. The three witnesses sought to be examined by this motion are the afore-mentioned Heberlon, Ltd., Amos Shavit and Alda. Previously, because plaintiff is located in Israel, under outstanding orders of this court ( 31 A.D.2d 607, 35 A.D.2d 690), discovery was delayed and the defendant was to have priority by the taking of plaintiff's deposition ten days before the trial and the plaintiff was to take the testimony of the defendant five days before trial. The denial of the motion by the court below was on the basis that the spirit of the determination as to priority would be violated if this commission issued prior to the examination by the defendant of the plaintiff as the plaintiff could in that way obtain prior disclosure. This is especially so where one of the proposed witnesses, Amos Shavit, is alleged to be a representative of the defendant. However, the examination of witnesses pursuant to CPLR 3106 (subd. [b]) is not necessarily dependent on the examination of parties and furthermore, the practical effect of the determination below, in view of the time factor for examination of the parties prior to trial, would be to preclude the plaintiff from examining the witnesses at all. Settle order on notice.

Concur — Markewich, J.P., Kupferman, McNally, Steuer and Macken, JJ.