Opinion
November 13, 1961
Bower, O'Connor Taylor for plaintiff.
John A. Sidirourgos for William H. Bradley, defendant.
In an action by an insurance company to disclaim liability under a certain insurance policy, the plaintiff, in two concurrent motions, moves (1) to vacate the defendant William H. Bradley's notice to examine it before trial in New York and (2) to modify the defendant William H. Bradley's demand for a bill of particulars. The defendant William H. Bradley cross-moves to examine the plaintiff before trial.
The plaintiff argues that it is a foreign unincorporated insurance association whose home office is in San Antonio, Texas, and who merely maintains a service office in the City of New York and that there are no employees, officers or directors in this State with knowledge of the facts in connection with the plaintiff's action. Therefore, the plaintiff argues, it would be a great hardship to compel it to submit to an examination before trial in this State.
This plaintiff, who does maintain an office in New York City, having invoked the jurisdiction of the New York courts, may not deprive the defendant William H. Bradley of an examination before trial because of its alleged nonresidence. ( Droogas v. Droogas, 1 A.D.2d 965; Johnson v. Phillips, 283 App. Div. 819; Strecker v. Pratt, 262 App. Div. 1055.) The fact that the plaintiff may have to send certain of its personnel from its main office in Texas is not so great a hardship to warrant vacating the defendant William H. Bradley's notice to examine it in New York.
Therefore, the plaintiff's motion to vacate the above-mentioned defendant's notice to examine it is in all respects denied. The plaintiff's motion to modify the defendant William H. Bradley's demand for a bill of particulars is granted. Items 2, 3 and 4 will be stricken and item 5 modified by striking all the matter after the words "contents thereof". In view of this disposition, the defendant William H. Bradley's cross motion need not be decided.