Opinion
June 22, 1965
Order, entered August 20, 1964, unanimously modified, on the law, on the facts, and in the exercise of discretion, to grant unconditionally and in its entirety the plaintiff's motion for protective order, and order appealed from otherwise affirmed, with $30 costs and disbursements to plaintiff-appellant. The notice of discovery and inspection was served approximately six weeks after the service and filing of the statement of readiness and note of issue. There was no showing of such "unusual and unanticipated conditions" as to justify relaxation of the provisions of rule IV of part 1 (subd. 4, par. [g]) of the New York County Supreme Court Rules prohibiting disclosure proceedings after the action was placed on the calendar; and the failure to timely move to strike the cause from the calendar constituted a waiver of the discovery and inspection now sought. ( Price v. Brody, 7 A.D.2d 204; Woznicki v. Lynn Terrace Apts., 22 A.D.2d 883, 884.) Under the circumstances, it is immaterial that the plaintiff's examination before trial was incomplete at the time of service and filing of the statement of readiness and note of issue. Particularly, it should be noted that before such service and filing and during said examination, plaintiff produced certain books and records but specifically refused to produce its income tax returns.
Concur — Botein, P.J., Breitel, Stevens, Eager and Staley, JJ.