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Peralta v. John Tara, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jun 15, 2006
30 A.D.3d 256 (N.Y. App. Div. 2006)

Opinion

8809N.

June 15, 2006.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 31, 2006, which, in an action for personal injuries sustained when plaintiff bicyclist was struck by defendants' vehicle, denied plaintiff's motion pursuant to CPLR 3103 (a) to amend the preliminary conference order so as to grant him priority of examination before trial, unanimously affirmed, without costs.

Taub Marder, Esqs., New York (Elliot H. Taub of counsel), for appellant.

Lester Schwab Katz Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for respondents.

Before: Andrias, J.P., Marlow, Sweeny, McGuire and Malone, JJ., Concur.


Plaintiff argues that he is entitled to priority of examination because he served the first notice of examination on May 25, 2005, after defendants' time to answer had expired. Defendants' attorney represents that on May 24, plaintiff's attorney orally agreed to extend defendants' time to answer to June 1, 2005, and, relying on such agreement, he served defendants' answer and notice of examination on that date, thus retaining defendants' normal priority of examination under CPLR 3106 (a). Plaintiff's attorney admits that a conversation took place on May 24, but denies that he agreed to an extension of time to answer. We note that plaintiff's attorney did not reject the answer served on June 1, 2005, even though defendants were, according to him, in default. Under these circumstances, the motion court properly retained defendants' normal priority ( see Buchwald v. Moskowitz, 142 Misc 2d 763; cf. Church Dwight Co. v. UDDO Assoc., 159 AD2d 275). We have considered and rejected plaintiff's other arguments.


Summaries of

Peralta v. John Tara, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jun 15, 2006
30 A.D.3d 256 (N.Y. App. Div. 2006)
Case details for

Peralta v. John Tara, Inc.

Case Details

Full title:RODOLFO CASTRO PERALTA, Appellant, v. JOHN TARA, INC. et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 15, 2006

Citations

30 A.D.3d 256 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 4939
816 N.Y.S.2d 354

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