Opinion
February 22, 1971
In an action to recover damages for wrongful death, defendant appeals from an order of the Supreme Court, Kings County, dated August 27, 1970, which (1) denied its motion to vacate plaintiff's notice to examine it before trial and (2) granted plaintiff's cross motion to direct defendant to appear for such examination. Order reversed, with $10 costs and disbursements; defendant's motion granted; and plaintiff's cross motion denied. Plaintiff served a note of issue without a statement of readiness in January, 1970, and in May, 1970 served a notice to examine defendant before trial. In our view, plaintiff's failure to serve the notice of examination within the 60-day period following the service of the note of issue as provided by the rules of this court (22 NYCRR 675.9) requires that his notice be vacated ( Ballin v. Crescent Holding Co., 34 A.D.2d 803; Black v. Fisher Bros., 27 A.D.2d 836). On these papers plaintiff has not demonstrated that she comes within any of the exceptions to said rule (see 22 NYCRR 675.6, 675.7). Hopkins, Acting P.J., Munder, Martuscello, Latham and Brennan, JJ., concur.