D'Angelo v. Goddard

• Decision Date: 11 March 1968
• Citation: 287 N.Y.S.2d 1007,29 A.D.2d 333
• Parties: Paul D. D'ANGELO, an Infant, by His Guardian ad Litem Mildred D'Angelo et al., Respondents, v. Raymond GODDARD et al., doing business as Karl Motor Sales et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 1007

287 N.Y.S.2d 1007

29 A.D.2d 333

Paul D. D'ANGELO, an Infant, by His Guardian ad Litem Mildred D'Angelo et al., Respondents, v. Raymond GODDARD et al., doing business as Karl Motor Sales et al., Appellants.

Supreme Court, Appellate Division, Third Department.

March 11, 1968.

Ainsworth, Sullivan, Tracy & Knauf, Albany (Robert K. Ruslander, Albany, of counsel), for defendants-appellants.

Carter & Conboy, Albany (James M. Conboy, Albany, of counsel), for plaintiffs-respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.

GABRIELLI, Justice.

This is an appeal from an order of the Supreme Court at Special Term entered in Rensselaer County which denied the appellants' motion for a protective order.

The action brought on behalf of the infant plaintiff charges negligent operation of the defendants' automobile when it struck the infant while he was a pedestrian on a sidewalk and the defendants' vehicle was being driven across the sidewalk to an area near their garage. The other action is brought by the infant's father in his derivative capacity. At the time of the occurrence, the infant plaintiff was 7 years of age and it is alleged that he sustained, among other injuries, a fractured skull and fractures of the right tibia and fibula.

Within a short time after present counsel for the plaintiffs were substituted, they served a notice to conduct an examination before trial of the defendants, none having theretofore been had. The defendants then moved for a protective order asserting that such a procedure was in violation of the intent and purpose of the rule promulgated for the regulation of calendar practice (Special Rule Regarding Calendar Practice, Appellate Division, 3rd Dept.) in that a note of issue and statement of readiness had been previously filed by plaintiffs, thus claiming that they had waived all rights to any pretrial procedures.

The rigid enforcement of the Special Rule is to be encouraged in order to relieve calendar congestion and to foster the orderly disposition and processing of litigated matters. However, while we recognize the sound basis for the rule and the reasoning therefor as laid down in Liberty Dressing Co. v. Foster Sportswear Co., 14 A.D.2d 196, 217 N.Y.S.2d 741; Cerrone v. S'Doia, 11 A.D.2d 350, 206 N.Y.S.2d 95; Fierro v. Del Gaudio, 14 A.D.2d 816 and in other similar holdings, that the filing of a note of issue and statement of readiness by any party will constitute a waiver of any further pretrial procedures, the rule may be relaxed in the sound discretion of the court, when special, unusual or extraordinary circumstances exist. The circumstances of this infant's action parallel those in Farrell v. Reed, 16 A.D.2d 709, 226 N.Y.S.2d 815 in which we held that...