Coonradt v. Walco

• Decision Date: 25 November 1967
• Citation: 285 N.Y.S.2d 421,55 Misc.2d 557
• Parties: Mark COONRADT, an infant by Rosemary Cietek, his mother and Rosemary Cietek, Individually, Plaintiffs, v. Peter WALCO, Defendant.
• Court: New York Supreme Court

Page 421

285 N.Y.S.2d 421

55 Misc.2d 557

Mark COONRADT, an infant by Rosemary Cietek, his mother and Rosemary Cietek, Individually, Plaintiffs, v. Peter WALCO, Defendant.

Supreme Court, Albany County, Special Term, Rensselaer County.

Nov. 25, 1967.

Carter & Conboy, Cohoes, for defendant.

Wager, Taylor, Howd & Brearton, Troy (James Ronan, Troy, of counsel), for plaintiffs.

LAWRENCE H. COOKE, Justice.

In this action to recover personal injuries and damages allegedly arising from an attack by defendant's dog, defendant moves 'for an order precluding the plaintiffs from giving evidence at the trial of this action of items '1', '2', '3', '7', '8', '9' and '10', or in the alternative direct--the plaintiffs to serve upon the defendant's attorneys a further bill of particulars, answering said items.' Plaintiffs cross move: (1) 'to dismiss the motion as not timely'; (2) 'for an order directing the examination before trial of the defendant by a member of the family or household having personal knowledge of the facts concerning the issues raised by the pleadings' and; (3) 'delaying any motion with respect to the bill of particulars pending such an examination before trial.'

CPLR 2214(b) requires service of a notice of motion and the supporting affidavits at least eight days before the time at which the motion is noticed to be heard and CPLR 2103(b)(2) requires that an additional three days be added where the service is by mail, so that, if service thereof is by mail, they are to be mailed at least eleven days before the return date.

While it has been held that the failure to serve a notice of motion and the supporting affidavits for at least the statutory time in advance of the return date is a jurisdictional defect prohibiting the court from considering the substance of the motion (Matter of Beck v. Goodday, 24 A.D.2d 1016, 265 N.Y.S.2d 916; Miot v. JoCarl Realty Corp., 19 A.D.2d 889, 244 N.Y.S.2d 721, mod. 20 A.D.2d 664, 246 N.Y.S.2d 542; Morabito v. Champion Swimming Pool Corp., 18 A.D.2d 706, 707, 236 N.Y.S.2d 130, 131; Thrasher v. United States Liab. Ins. Co., 45 Misc.2d 681, 257 N.Y.S.2d 360; cf. Irish Propane Corp. v. Burnwell Gas Distributors, Inc., 25 A.D.2d 616, 269 N.Y.S.2d 390; Doran Lumber Corp. v. James Talcott, Inc., 19 A.D.2d 791), it should be treated as a procedural irregularity which is deemed waived unless objection is raised thereto or one which may be disregarded if a substantial right of a party is not prejudiced (Matter of Shanty Hollow Corp. v. Poladian, 23 A.D.2d 132, 259 N.Y.S.2d 541 (3d Dept.), affd. 17 N.Y.2d 536, 267 N.Y.S.2d 912, 215 N.E.2d 168; Baciagalupo v. Baciagalupo, 53 Misc.2d 13, 277 N.Y.S.2d 760; 40 St. John's Law Review, p. 148). This is in keeping with the philosophy underlying the Civil Practice Law and Rules, that procedural rules should be primarily a means to the end of securing the just resolution of controversies on the merits and at a minimum of expense and delay and with a deemphasis on nonprejudicial procedural defects (CPLR 104, 2001; 2 Weinstein-Korn-Miller, New York Civil Practice, 2001.01). To hold an untimely notice of motion as a jurisdictional defect would be unduly harsh in view of the fact that a show cause order might be obtained reducing the period of notice (CPLR 2214(d)) or that the defect might be waived by opposition on the merits (Todd v. Gull Contracting Co., Inc., 22 A.D.2d 904, 255 N.Y.S.2d 452). Here, the defect or irregularity should be disregarded since no substantial right of plaintiffs have been prejudiced, it appearing among other things that the motion was returnable originally on September 22, 1967 and thereafter adjourned to a Special Term held on October 13, 1967.

There are limitations as to the persons who may be compelled to appear and give testimony upon a deposition, said persons falling into two basic categories: (1) a party or a present officer, director, member, agent or employee of a party, or a person who previously possessed a cause of action or defense asserted in the action; and (2) a witness (CPLR 3101(a); Wachtell, New York Practice Under the CPLR, pp. 229--230). In general, depositions may be freely taken from a party (3 Weinstein-Korn-Miller, New York Civil Practice, 3101.22, 3101.23). In the case of an ordinary witness, a deposition may be taken only upon a showing that he is in a position to furnish material and necessary testimony and, in addition, that the witness (1) is about to depart from the state, or (2) is outside the state, or (3) resides more than 100 miles from the place of trial, or (4) is so sick or infirm as to afford reasonable grounds of belief that he will not be able to attend the trial; or (5) if, the court on motion, determines that there are adequate special circumstances (Carmody-Forkosch, New York Practice (8th ed.), § 624). Although defendant may be examined as a party, he is not a corporation nor is there other authority to permit him to be examined 'by a member of the family or household having personal knowledge of the facts.' Nor has there been a showing that would justify a deposition...