Opinion
April 17, 1961
In an action to recover damages for injuries to person and property, the defendant, a nonresident, appeals, as limited by his brief: (1) from so much of an order of the Supreme Court, Suffolk County, dated November 23, 1960, as directed him to appear for examination before trial in Suffolk County on January 9, 1961; and (2) from an order of the same court, dated December 20, 1960, granting his motion for reargument but adhering to the original decision. Order made on reargument modified: (a) by striking from the decretal paragraph the provision that "the court adheres to its original decision;" and (b) by substituting therefor the following provisions: (1) a provision directing that the nonresident defendant shall appear for examination at Special Term, Part I, of the Supreme Court, Suffolk County, at least 10 days before the actual trial date; (2) a provision directing said defendant to notify the plaintiff in advance if he expects to be in New York at some earlier date prior to the trial and to submit himself for examination in the same place upon such date as plaintiff shall fix for such earlier examination; (3) a provision that the foregoing shall be without prejudice to plaintiff's right, if so advised, to move for an examination of defendant on written interrogatories or by open commission; and (4) a provision that in all other respects the court adheres to its original decision. As so modified, said order is affirmed, without costs. Under the circumstances of the case at bar, there being no showing of any urgent need for the examination now of the nonresident defendant, the usual rule that his examination await the "eve" of trial seems applicable ( Duncan v. Jacobson, 187 Misc. 918, affd. 274 App. Div. 762). With such deferment there may be properly applied the concomitant rule that the nonresident defendant notify the plaintiff if he expects to be in New York at some earlier date, prior to the trial, so as to enable the plaintiff to orally examine him here upon such occasion ( Bluhm v. Abed, 272 App. Div. 899). If plaintiff require an earlier examination of defendant, he may, if so advised, upon a proper showing, present an application to examine defendant in Nevada on written interrogatories or by open commission ( Gittlitz v. Lewis, 11 A.D.2d 1065). Appeal from order of November 23, 1960, dismissed. That order has been superseded by the later order granting reargument. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.