Opinion
April 10, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of the Supreme Court at Special Term which granted plaintiff's motion for examination of defendant before trial and for discovery and inspection, against defendant's contention that plaintiff waived her rights to these pretrial procedures by her prior filing of a note of issue and a statement of readiness (Special Rule Respecting Calendar Practice, Appellate Division, 3d Dept.) The reasons advanced by plaintiff's attorney for his delay in moving, continuing until the retainer of trial counsel, do not account for the premature filing of the statement of readiness; but Special Term was warranted in finding in the nature and circumstances of this wrongful death action, in which the facts of the accident are solely within defendant's knowledge, sufficient grounds to relax the rigid enforcement of the special rule and we may not disturb this reasonable exercise of the court's discretion. (See Liberty Dressing Co. v. Foster Sportswear Co., 14 A.D.2d 196, 197; McGuire v. Pick, 8 A.D.2d 800, 801; Amkraut v. Roanoke Garment Co., 5 A.D.2d 863.) Order unanimously affirmed, with $10 costs.