Aaron v. St. Peter's Hospital

• Decision Date: 25 May 1960
• Citation: 203 N.Y.S.2d 733,26 Misc.2d 515
• Parties: Benjamin AARON, as Administrator of Goods, Chattels, and Credits of Sophie Aaron, deceased and Benjamin Aaron, individually, Plaintiffs, v. ST. PETER'S HOSPITAL, Defendant.
• Court: New York Supreme Court

Page 733

203 N.Y.S.2d 733

26 Misc.2d 515

Benjamin AARON, as Administrator of Goods, Chattels, and Credits of Sophie Aaron, deceased and Benjamin Aaron, individually, Plaintiffs, v. ST. PETER'S HOSPITAL, Defendant.

Supreme Court, Special Term, Kings County, Part I.

May 25, 1960.

Silverstein & Silverstein, Flushing, Nathan Grossgold, Flushing, of counsel, for plaintiffs.

Caverly, Dimond, Dwyer & Lawler, Brooklyn, for defendant.

JOHN E. CONE, Justice.

By this motion plaintiff seeks (1) to strike defendant's answer for willful failure to return the transcript of the witness Margaret Lawton, subscribed by that witness, and for refusal to provide plaintiff with certain records referred to in the foregoing examination before trial; (2) to obtain a further examination before trial; (3) to obtain a discovery and inspection; and (4) to preclude defendant from adducing any evidence in support of the first affirmative defense for failure to serve and file a bill of particulars pursuant to demand made January 22, 1958.

Though the examination before trial had been concluded in October, 1957, the transcript of the witness' testimony was not forwarded to the defendant until six months later, in May, 1958, the same month when the witness terminated her employment with the defendant. Aside from the fact that there has been a failure in showing any willfulness on the part of the defendant, there is no provision in the statute authorizing the striking of a pleading where the transcript is not subscribed by the witness (see Civil Practice Act, § 302). The motion to strike defendant's answer is therefore denied (Boxer v. 2 East 75th St. Corp'n, Sup., 55 N.Y.S.2d 926; Ricker v. Daniels, 263 App.Div. 584, 33 N.Y.S.2d 939).

The court will now consider the plaintiff's application for a further examination before trial and for a discovery and inspection. By filing a statement of readiness in June, 1958, plaintiff certified that 'all necessary or proper preliminary proceedings * * * have been completed * * *.' Appellate Division Special Rule, Second Department, as amended, effective November 18, 1957. Such certification by the plaintiff constitutes a waiver of any rights plaintiff may have had to a further examination before trial, a bill of particulars or a discovery and inspection (see Price v. Brody, 7 A.D.2d 204, 181 N.Y.S.2d 661 [First Department, where the same special rule prevails]). Any 'stipulation or agreement purporting to waiver or supersede any provision of this rule, unless approved by the court * * * will be deemed a nullity * * *.' Special Rule, supra, subd. 9[a]. A general statement of alleged reliance by the plaintiff upon the good...