Opinion
December 28, 1981
In an action, inter alia, to recover damages based upon a violation of plaintiff's rights under section 296 Exec. of the Executive Law, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McGinity, J.), dated November 7, 1980, as granted the branch of plaintiff's motion which sought an order deeming certain interrogatories to be resolved in her favor, unless defendants responded to them within a certain time. Order affirmed insofar as appealed from, with $50 costs and disbursements. Defendants' time to respond to the interrogatories is extended until 10 days after service upon them of a copy of the order to be made hereon, with notice of entry. Pursuant to a court order dated July 14, 1980, the defendant town was directed to respond to Interrogatory Nos. 12 and 13, to the extent that it state what it is about plaintiff's medical condition that would interfere with her performing the duties of her employment. The defendants' response was evasive. Consequently, plaintiff is still unaware of the basis of defendants' claim, and until these "material and necessary" allegations are clarified, plaintiff cannot adequately prepare her case (see Mogollon v South African Mar. Corp., 80 A.D.2d 636; Kenford Co. v County of Erie, 41 A.D.2d 586; Kelly v Shafiroff, 80 A.D.2d 601). In light of the CPLR's liberal rules of pleading, defendants should not be permitted to abdicate their responsibilities by claiming that this vital information is not within their knowledge, but rather within the knowledge of a nonparty witness (see Allen v Crowell-Collier Pub. Co., 21 N.Y.2d 403). Cohalan, J.P., O'Connor, Thompson and Bracken, JJ., concur.