Belski v. New York Cent. R. R.
| Decision Date | 25 February 1972 |
| Citation | 329 N.Y.S.2d 345,38 A.D.2d 882 |
| Parties | Frank BELSKI, Respondent, v. NEW YORK CENTRAL RAILROAD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Harris, Beach & Wilcox (Edward R. Macomber), Rochester, for appellant.
Thomas W. O'Connell, Rochester, for respondent.
Before MARSH, J. P., and WITMER, GABRIELLI, MOULE and CARDAMONE, JJ.
In vacating a previous order of another Justice, Special Term permitted plaintiff to conduct a second examination before trial of defendant's employee although plaintiff had previously filed a statement of readiness and note of issue which stated that 'all depositions now known to be necessary (are) completed'. Upon the undisputed facts such was an improvident exercise of Special Term's discretion.
The plaintiff alleged in his complaint that on September 6, 1966 he was injured when defendant railroad's freight car door fell on his foot. After issue was joined, plaintiff examined defendant.
The action was stricken from the Supreme Court calendar of Monroe County in September, 1969. Plaintiff's motion to restore was granted on October, 1969 upon condition that he file a new note of issue and a statement of readiness. Such was filed on September 15, 1970 with the declaration that all depositions had been completed. Prior thereto plaintiff had moved for a further examination before trial of defendant's employee, which motion was denied by Special Term (Schnepp, J.) on June 17, 1970. No appeal was taken from this order. On September 28, 1970 (after filing the above statement of readiness) plaintiff moved before Special Term (Erwin, J.) to vacate the prior order of Special Term and obtain a further examination before trial of defendant's employee. It is from the order dated February 24, 1971 granting such motion that defendant has appealed.
Absent a showing of unusual or special circumstances by the party seeking further disclosure, it is improper to grant the same after a statement of readiness has been filed (Warren v. Vick Chemical Co., 37 A.D.2d 913, 325 N.Y.S.2d 495). As we have stated: 'The purpose of this statement of readiness rule is to insure that only those actions in which all the preliminary proceedings have been completed, and which are actually ready for trial shall be on the Trial Calendar . . .' (Cerrone v. S'Doia, 11 A.D.2d 350, 352, 206 N.Y.S.2d 95, 97). A party wishing further pre-trial examination, in the absence of a showing of special circumstances, must move within twenty days to strike the...
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