Hackbarth v. Schoeck

• Decision Date: 28 January 1965
• Citation: 45 Misc.2d 120,256 N.Y.S.2d 299
• Court: New York Supreme Court
• Parties: Raymond W. HACKBARTH, Plaintiff, v. Paul SCHOECK, Defendant.

Page 299

256 N.Y.S.2d 299

45 Misc.2d 120

Raymond W. HACKBARTH, Plaintiff, v. Paul SCHOECK, Defendant.

Supreme Court, Special Term, Onondaga County.

Jan. 28, 1965.

Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, for plaintiff; Raymond W. Hackbarth, Syracuse, of counsel.

Higgins, Kelsen, O'Hara & Young, Syracuse, for defendant; Alton C. O'Hara, Syracuse, for counsel.

RICHARD D. SIMONS, Justice.

Plaintiff moves for Examination Before Trial of two employees of Schoeck Builders, Inc., pursuant to Article 31 of Civil Practice Law and Rules.

Plaintiff contracted with the defendant to build a home. Fred Schoeck and Richard Schoeck were employed by defendant. Subsequent to the construction, a dispute arose between the parties in which the plaintiff charged the defendant with breach of contract. After the commencement of this action, defendant discontinued operation in his individual name and incorporated under the name of Schoeck Builders, Inc. which continues to develop homes in the same tract of land. Defendant is a director, officer and stockholder of the corporation, though not the sole or majority stockholder.

The defendant resists this motion on the grounds that the witnesses sought to be examined are not at the present time employees of the defendant. C. f. Kuzmak v. Atlantic Cement Co., 20 A.D.2d 845, 248 N.Y.S.2d 115.

It has generally been held that only employees employed at the time of the receipt of the notice of examination may be examined as such. Greenpoint Savings Bank v. Central Gardens Unit No. 1, 280 App.Div. 987, 116 N.Y.S.2d 554; Haas v. Rothenberg, 6 A.D.2d 797, 175 N.Y.S.2d 280. At the time of the receipt of this notice, Fred Schoeck and Richard Schoeck were employees of Schoeck Builders, Inc. and not of the defendant herein. However, it is not necessary to determine whether the plaintiff is entitled to examine them as prior employees pursuant to Civil Practice Law and Rules § 3101(a), (1). It is the Court's determination that there are special circumstances existing here that permit their examination pursuant to Civil Practice Law and Rules § 3101(a), (4).

§ 3101 proceedings should be construed liberally. C. f. Chester v. Zima, 41 Misc.2d 676, 246 N.Y.S.2d 144. The Courts have readily found special circumstances within the definition of the statute to permit non-party witnesses to be examined. Kuzmak v. Atlantic Cement Company, supra. Special knowledge of the witnesses has been held sufficient. South Bridge Finishing Co. v. Golding, 2 A.D.2d 430, 156 N.Y.S.2d 252; Rensselaer Polytechnic Institute v. Machnick Construction Co., 19 A.D.2d 677, 241 N.Y.S.2d 142. Discontinuation of the business has been considered in looking to the special circumstance of the case. Williams v. Sterling Estates, Inc., 41 Misc.2d 692, 245 N.Y.S.2d 777. Reluctance, unwillingness or hostility of a witness has been held a special circumstance. Favole v. Gallo, 261 A.D. 974, 25 N.Y.S.2d 806; Cataldo v. Long...