Opinion
November 12, 1963
Philip M. Kovitz for plaintiff.
Sidney Brandes for Manhattan and Bronx Surface Transit Operating Authority, defendant.
Upon the foregoing papers this motion to direct defendant to appear for an examination before trial, and to produce thereon certain documents is granted. Defendant contends that the notice of examination heretofore served was premature, for plaintiff has not yet complied with defendant's demand for a bill of particulars. Prior to the enactment of the Civil Practice Law and Rules it was the general rule, in this Department, that a bill of particulars had to be served before that party could obtain an examination before trial of his opponent. The principle in rule 3106 of the Civil Practice Law and Rules pertaining to the priority given to the party who first serves the notice, should not be deviated from, absent unusual circumstances (see Pakter v. Lilly Co., 19 A.D.2d 810). Under that section a notice to take a deposition before trial can be served with the answer. Adherence to the prior rules concerning the respective priorities of a bill of particulars and an examination before trial, would work to vitiate the general priority of examinations given defendants, and would appear inconsistent with the statutory scheme. Sufficient means exist whereby a party can secure a bill duly demanded if the other party fails to serve it in time, without staying an examination on that basis.