Opinion
February 11, 1964
Bondy Schloss for plaintiff.
Erdheim Armstrong for defendant.
By this motion for a protective order, pursuant to section 3103 of the Civil Practice Law and Rules, the plaintiff seeks a ruling on the priority of examinations before trial.
On January 13, 1964, 34 days after the summons and complaint were served upon her, the defendant served her answer, pursuant to a stipulation extending her time to answer, and also served a notice to examine the plaintiff. The examination of plaintiff was set for January 30, 1964, upon 17 days' notice.
Simultaneously with service of a reply to a counterclaim contained in the answer, on January 15, 1964, the plaintiff served a notice to examine the defendant on January 27, 1964, at a different place from that set forth in the notice to examine the plaintiff. Each party now claims the right to examine the other first. The court holds that defendant has the priority.
The draftsmen of the Civil Practice Law and Rules adopted the established policy of this Second Department, which is generally to afford priority of examination to defendants when their notices are first served. The theory of this rule is that, in the absence of special circumstances, a defendant, being blameless until plaintiff proves him otherwise, should be given the first opportunity to find out what plaintiff's case is about (3 Weinstein-Korn-Miller, N.Y. Civ. Prac., p. 31-96, par. 3106.02).
If plaintiff had served his notice to examine before receiving defendant's notice and after 20 days had elapsed since service of the summons and complaint, then of course plaintiff would be entitled to examine first (CPLR 3106; 3 Weinstein-Korn-Miller, op. cit., pp. 31-96, 31-97; see, also, 4 Moore, Federal Practice [2d ed.], par. 26.09, subd. [1]).
By waiting until the defendant had served her notice, the plaintiff is now restrained by the provisions of the statute (CPLR 3107, last sentence), limiting his cross notice to the same time and place as the defendant's notice, and commencing after the completion of plaintiff's examination by the defendant.
However, a demand for a bill of particulars having been served by the plaintiff, and more than 10 days having elapsed since the service thereof and the making of this motion and the cross motion for a protective order, and it appearing that no bill has been served, the examinations are stayed until 10 days after service of the bill. The bill is directed to be served within 20 days after service of a copy of the order to be entered herein upon the attorneys for the defendant.
The cross motion by defendant for a protective order is denied except to the extent hereinabove indicated.