J. J. Little & Ives Co. v. Hanover Ins. Co.
Decision Date | 26 April 1962 |
Citation | 231 N.Y.S.2d 674,34 Misc.2d 961 |
Parties | J. J. LITTLE & IVES CO. Inc., Plaintiff, v. The HANOVER INSURANCE COMPANY, Defendant. |
Court | New York Supreme Court |
Weisman, Celler, Allan, Spett & Sheinberg, New York City, for plaintiff (Leonard Lipschutz, New York City, of counsel).
Rein, Mound & Cotton, New York City, for defendant (Eugene A. Leiman, New York City, of counsel).
In this action upon a policy of insurance to recover for water damage to the plaintiff's property, the defendant moves to vacate the plaintiff's notice to examine the defendant before trial.
After the receipt by the defendant of the notice for examination, it asked for and obtained an adjournment thereof. It is elementary that when the defendant stipulated in writing to adjourn the examination, without reserving its rights in the premises, it thereby waived its right to attack the notice (Haas v. Rothenberg, 6 A.D.2d 797, 175 N.Y.S.2d 280; Mossew v. To Market, Inc ., 3 A.D.2d 189, 158 N.Y.S.2d 1001; Kozak v. 244 East 2nd Realty, Inc., 25 Misc.2d 437, 196 N.Y.S.2d 35).
Moreover, on the merits, I do not find any valid basis for the objection now raised by the defendant. The examination sought is as 'to the relevant and material allegations of fact put in issue by the pleadings in the action'. This general expression is now permissible (Rule 121-a, Rules of Civil Practice, as amended March 1, 1958; see Manacher v. Central Coal Co., 7 A.D.2d 208, 210, 181 N.Y.S.2d 688, 690; cf. Bohlinger v. Rosenbaum, 6 Misc.2d 235, 236, 162 N.Y.S.2d 695, 696). Any objection on the ground that the plaintiff may attempt to inquire into matters which are not in issue can be raised at the time that the examination is being conducted. It is not the function of the court, at this time, and on this motion, to rule on the propriety of each prospective inquiry. The motion to vacate is therefore denied.
As to production of records upon the examination, I direct that the defendant produce all relevant records for use pursuant to section 296 of the Civil Practice Act. The plaintiff is not entitled to examine the defendant as to the contents of the reports of its investigators (Palmieri v. Standard Insurance Company of New York, 5 A.D.2d 684, 168 N.Y.S.2d 515; Friedman v. Metropolitan Life Ins. Co., 1 A.D.2d 766, 149 N.Y.S.2d 208; Metropolitan Life Insurance Company v. Goldberger, 1 A.D.2d 823, 149 N.Y.S.2d 281). Accordingly, the production...
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