Opinion
April 15, 1965
Orders, entered April 6, 1964, unanimously modified, on the law, the facts, and in the exercise of discretion, to direct that the order entered July 19, 1962 shall be modified to provide that the plaintiff shall submit to an examination in New York City the next time that she visits or appears in the State of New York or in any adjoining State, and to further direct that, in default of prior examination, she shall appear for examination in New York City at least two weeks before the trial; order entered July 19, 1962, unanimously modified accordingly; and orders otherwise affirmed, with one bill of $50 costs and disbursements to appellant. The appeals are consolidated and settle single order on notice to further provide that plaintiff shall give the defendant at least 10 days' notice of the time when she shall visit or appear in New York or in any adjoining State. The defendant is entitled to examine the plaintiff sufficiently in advance of the trial to enable it to adequately prepare its defense. Where, as here, the plaintiff is a nonresident, the court will consider her good faith in refusing to submit to an examination here in usual course and the difficulties and hardships surrounding an appearance here. (See 5 Carmody-Wait, New York Practice, § 43, pp. 432, 433.) It appears that the plaintiff, although now a resident of California, travels widely and that, without notice to defendant, was in New York for a period of time after the service upon her of a notice for her examination. It does not appear that it would be a hardship to require the plaintiff to appear for examination here the next time she comes to New York or vicinity; and, in any event, she should appear for an examination at least two weeks before the trial. (See Duncan v. Jacobson, 187 Misc. 918, affd. 274 App. Div. 762; Johnson v. Phillips, 283 App. Div. 819; Nardelli v. Stam, 13 A.D.2d 698.) Settle single order on notice.
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.