Fekeith v. New York City Transit Authority
| Decision Date | 23 November 1970 |
| Citation | 317 N.Y.S.2d 463,65 Misc.2d 314 |
| Parties | Katherine FEKEITH v. N.Y. CITY TRANSIT AUTHORITY. |
| Court | New York Supreme Court |
Carl A. Espach and Melvin J. Espach, Hempstead, for plaintiff.
Sidney Brandes, Brookly, for defendant.
Motion for an order pursuant to CPLR 3124 compelling defendant to produce certain records for inspection is granted. The notice for discovery and inspection, made pursuant to CPLR 3120, was served on defendant on August 20, 1970. No application for a protective order was made by defendant within the five day period provided for in CPLR 3122, and no satisfactory excuse has been offered for its failure to comply with the time requirements of that Rule. Defendant is therefore barred from objecting to the production of the items sought in plaintiff's notice. Coffey v. Orbachs, Inc., 22 A.D.2d 317, 254 N.Y.S.2d 596. However, defendant claims that even if it is barred by its failure to comply with CPLR 3122, plaintiff should still be denied discovery and inspection because his notice was served more than sixty days after he had filed a note of issue. The note of issue was filed on January 28, 1970 and as previously indicated, the discovery notice was served on August 20, 1970. Section 660.4(d)(9) of the Rules of the Supreme Court, New York and Bronx Counties, provides that '(i)n an action in which a note of issue has been filed without a statement of readiness, any party who fails or omits to serve notice of examination before trial prior to the 60th day after the dated of service of the note of issue shall be deemed to have waived all rights to such examination before trial, except as provided in paragraphs (6) and (7) of this subdivision (dealing with special circumstances).' If we were here concerned with a notice of examination before trial, it would appear that even though defendant failed to move for a protective order within five days, it could still successfully preclude plaintiff from obtaining disclosure by reason of his own tardiness. See, E.g., Farone v. Korey Motors, Inc., 44 Misc.2d 565, 254 N.Y.S.2d 209, and the commentary following CPLR 3122 in McKinney's Consolidated Laws of New York. However, this motion does not involve a notice of examination before trial, but rather, a notice of discovery and inspection. The Court Rules refer only to the former. While I am aware that in one case Section 660.4(d)(9) has been interpreted to include a notice for...
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Mosca v. Pensky
...disclosure devices on the ground of laches (Mallin v. Kossin, 25 A.D.2d 509, 266 N.Y.S.2d 579, Supra; cf. Fekeith v. New York City Tr. Auth., 65 Misc.2d 314, 317 N.Y.S.2d 463). Nonetheless, the Court concludes that the rule does not apply where plaintiffs seek disclosure of insurance policy......