Di Tucci v. Donatelli, 1

• Decision Date: 08 July 1959
• Docket Number: No. 1,No. 3,No. 2,1,2,3
• Citation: 19 Misc.2d 376,189 N.Y.S.2d 728
• Parties: Lorraine DI TUCCI, Dorothy Di Tucci, Catherine Di Tucci, infants, by their Guardian ad Litem, Charles Di Tucci and Charles Di Tucci individually and Josephine Di Tucci v. Frank DONATELLI, Theresa Donatelli and Paul Margolin (Action). Francis DONATELLI, an infant by his Guardian ad Litem, Frank Donatelli, Donald Garvey, an infant, by Theresa Donatelli, his Guardian ad Litem, Theresa Donatelli and Frank Donatelli v. Paul MARGOLIN (Action). Paul MARGOLIN v. Frank DONATELLI (Action).
• Court: New York Supreme Court

Page 728

189 N.Y.S.2d 728

19 Misc.2d 376

Lorraine DI TUCCI, Dorothy Di Tucci, Catherine Di Tucci,

infants, by their Guardian ad Litem, Charles Di

Tucci and Charles Di Tucci individually and Josephine Di Tucci v. Frank DONATELLI, Theresa Donatelli and Paul Margolin (Action No. 1).

Francis DONATELLI, an infant by his Guardian ad Litem, Frank

Donatelli, Donald Garvey, an infant, by Theresa

Donatelli, his Guardian ad Litem, Theresa Donatelli and Frank Donatelli v. Paul MARGOLIN (Action No. 2).

Paul MARGOLIN v. Frank DONATELLI (Action No. 3).

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

July 8, 1959.

Joseph F. O'Brien, Brooklyn, for defendants Frank Donatelli and Theresa Donatelli in action No. 1 and Frank Donatelli in action No. 3, for the motion.

Lawless & Lynch, New York City, for defendant Margolin in actions Nos. 1 and 2, opposed.

George H. Nadelson, Flushing, for plaintiffs in action No. 1, opposed.

Louis Mendelson, New York City, for plaintiffs in action No. 2, opposed.

Max J. Gwertzman, New York City, for plaintiff in action No. 3, opposed.

J. IRWIN SHAPIRO, Justice.

Motion by defendants in Action No. 1 and by defendant in Action No. 3 'to strike out the Answer of the defendant, Paul Margolin, in Action No. 1 and dismiss his Complaint in Action No. 3, upon the ground that he failed to appear for an Examination Before Trial on May 28, 1959, pursuant to a Notice of Examination Before Trial' served upon his attorneys in said respective actions and which examination was adjourned from time to time, pursuant to a stipulation of counsel. No papers in opposition are submitted by Paul Margolin as plaintiff in Action No. 3. In Action No. 1, where Paul Margolin is defendant, it is contended by his counsel that there was no necessity for him to appear for an examination before trial at the behest of his codefendants because there are no issues between them. There are no cross-complaints between said codefendants.

The Appellate Division, First Department, has held that in a personal injury action codefendants may examine each other before trial, even in the absence of cross-complaints and the existence of special circumstances. Schneider v. Doyle, 6 A.D.2d 122, 175 N.Y.S.2d 595. The Third Department is in accord. Frost v. Walsh, 195 Misc. 391, 90 N.Y.S.2d 174, affirmed 275 App.Div. 1017, 91 N.Y.S.2d 746.

In 1951, in Johansen v. Gray, 279 App.Div. 108, 108 N.Y.S.2d 35, 37, the Appellate Division, Second Department, held to the contrary:

'* * * There is no provision in statute or rule authorizing an examination of a party to an action by another party thereto (as distinguished from examining him as a witness) in respect of an issue of fact unless it arises from pleadings between such parties. Testimony is not 'material and necessary', Civ.Prac.Act, § 288, unless it relates to an issue of fact which so arises. Here there is no issue of fact between defendant Needes Express, Inc., and defendant Gray arising from their pleadings. Until such an issue so appears, an examination may not be permitted, as there is no basis upon which a determination can be made in respect of the burden of proof.

* * *

* * *

'For these reasons, so far as Frost v. Walsh, 275 App.Div. 1017, 91 N.Y.S.2d 746, supra, is to the contrary, it may not be followed.'

The rationale of the Johansen case, supra, is that there is no basis upon which an examination before trial can be allowed by one defendant of a codefendant unless an issue arises between them under the pleadings, because under such circumstances no 'determination can be made in respect of the burden of proof.' Of course the rule with respect to the burden of proof, so far as a right to examine a party before trial is concerned, no longer obtains. Parker v. Culler Furniture Co., 278 App.Div. 135, 136, 103 N.Y.S.2d 710, 712 and Rule 121-a, Civil Practice Act, effective July 1, 1952.

The reason for the ruling of the Appellate Division, Second Department, in the Johansen case, supra, having disappeared, it is apprehended that upon the matter coming before that court again it will follow the rule in the Frost and Schneider cases, supra, and so it was held in Special Term decisions made subsequent to that determination. Burdman v. Caruti, Sup., 140 N.Y.S.2d 631 and Pederson v. Board of Education...