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Richard v. New York City Transit Auth

Supreme Court, Appellate Term, Second Department
Jul 21, 1965
47 Misc. 2d 669 (N.Y. App. Term 1965)

Opinion

July 21, 1965

Appeal from the Civil Court of the City of New York, County of Queens, WILLIAM G. GIACCIO, J.

Nathaniel Greenbaum for appellants.

Sidney Brandes and Raymond L. Aronson for respondent.


Order unanimously modified by permitting the examination of defendant Potter as a party and a witness without prejudice to an application to the trial court to use the deposition for all purposes pursuant to CPLR 3117 (subd. [a], par. 3). As so modified, order affirmed, without costs.

As to her codefendant, defendant Potter is a witness ( Nixon v. Beacon Transp. Corp., 239 App. Div. 830, 831; Napier v. Bossard, 102 F.2d 467, 468). Plaintiffs would be entitled to an examination of said party as a witness "where the court on motion determines that there are adequate special circumstances" (CPLR 3101, subd. [a], par. 4). Since plaintiffs claimed to be without knowledge of the manner in which the collision occurred and the driver of the codefendant's vehicle is deceased, special circumstances sufficient to warrant the examination were demonstrated on the motion. No prejudice can result from the granting of such a motion ( Kapp Records v. Hyland, 19 A.D.2d 611) inasmuch as the use of the deposition will be governed by CPLR 3117 (subd. [a], par. 3).

Concur — DiGIOVANNA, GULOTTA and BRENNER, JJ.

Order modified, etc.


Summaries of

Richard v. New York City Transit Auth

Supreme Court, Appellate Term, Second Department
Jul 21, 1965
47 Misc. 2d 669 (N.Y. App. Term 1965)
Case details for

Richard v. New York City Transit Auth

Case Details

Full title:HENRIETTA RICHARD et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY…

Court:Supreme Court, Appellate Term, Second Department

Date published: Jul 21, 1965

Citations

47 Misc. 2d 669 (N.Y. App. Term 1965)
262 N.Y.S.2d 990

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