Farone v. Korey Motors, Inc.
| Decision Date | 18 November 1964 |
| Citation | 44 Misc.2d 565,254 N.Y.S.2d 209 |
| Parties | Anne M. FARONE v. KOREY MOTORS, INC. and General Motors Corporation. |
| Court | New York Supreme Court |
Harold Sylvan, Trial Counsel, New York City, for Rabinowitz & Eisenberg, New York City, for plaintiff.
O'Brien & Kelly, Patchogue, for defendants.
On the face of CPLR Rule 3122, this motion by plaintiff for a protective order with regard to a defendant's notice for discovery and inspection is untimely. However, the section should be read with and related to CPLR § 3103(a), which latter provides that a court may make a protective order on its own initiative at any time (3 Weinstein-Korn-Miller, New York Civil Practice, Par. 3122.01). However, good cause for a departure from the stated time limit should be shown.
Despite a failure to excuse the tardiness of this motion a complicating factor is manifested in that the notice itself was served after a note of issue and statement of readiness had been filed. Therefore, the notice itself is untimely (Rules of the Appellate Division, Second Dept., Part Seven, rule VII). There is some indication that the action was placed on the calendar right after examinations before trial were concluded. Movant asserts it simply followed better procedure in first examining and then attempting to discover and inspect, based upon the information obtained upon the examination.
Ultimate complication is established by the subject matter of the notice itself. The action seemingly is based upon theories of negligence and breach of warranty, plaintiff having sustained injury allegedly due to a defective steering mechanism in her automobile. The moving defendant asks for discovery of the automobile itself, of the allegedly defective parts thereof, of a copy of the repair estimate, and of inspection and investigation reports made on plaintiff's behalf or her insurance company. One question raised, as to the last item, is whether that is 'work product' and therefore not subject to disclosure (CPLR § 3101 [c]). Another is the amenability of plaintiff's carrier, a non-party, to such discovery proceeding in any event.
Rather than delve into the tempting technical and substantive issues presented the court feels obliged to first insist upon a proper procedural framework. Plaintiff must excuse, if possible, the lateness of her request for the instant protective relief sought; defendant, even before that, must fully and factually...
To continue reading
Request your trial
-
Mosca v. Pensky
...is not without significance. Movant wisely refrained from relying solely upon the statement of readiness rule (cf. Farone v. Korey Motors, 44 Misc.2d 565, 254 N.Y.S.2d 209; D. Siegel, Practice Commentaries to CPLR 3122, McKinney's Consol. Laws of N.Y., Book 7B, pp. 597--98) because if, as I......
-
Weisgold v. Kiamesha Concord, Inc.
...by Professor Siegel, McKinney's Cons.Laws of N.Y., Book 7B CPLR, p. 71, 1965 cumulative pocket part; cf. Farone v. Korey Motors Inc., 44 Misc.2d 565, 254 N.Y.S.2d 209). Movant contends that the report is 'work product and material prepared for litigation' and therefore protected under CPLR ......
-
Edwardes v. Southampton Hospital Ass'n
...at CPLR, 3122 are flexible at least to the extent that the section may be read in connection with CPLR, 3103(a) (Farone v. Korey Motors, Inc., 44 Misc.2d 565, 254 N.Y.S.2d 209; cf. Weisgold v. Kiamesha Concord, Inc., 51 Misc.2d 456, 273 N.Y.S.2d 279). Here, we are inclined to relieve plaint......
-
Friendly Babylon Corp. v. Locust at Ralph Corp.
... ... Salisbury Point Co-ops., Inc., 21 A.D.2d 813, 250 N.Y.S.2d 896; Hewitt v. Maass, 41 Misc.2d 894, 246 ... ...