Kozak v. 244 East 2nd Realty, Inc.

• Decision Date: 04 January 1960
• Citation: 25 Misc.2d 437,196 N.Y.S.2d 35
• Parties: Terry KOZAK, an infant, by his guardian ad litem, Anna Kozak, and Anna Kozak, Plaintiffs, v. 244 EAST 2ND REALTY, INC., Defendant.
• Court: New York Supreme Court

Page 35

196 N.Y.S.2d 35

25 Misc.2d 437

Terry KOZAK, an infant, by his guardian ad litem, Anna Kozak, and Anna Kozak, Plaintiffs, v. 244 EAST 2ND REALTY, INC., Defendant.

Supreme Court, Special Term, New York County, Part I.

Jan. 4, 1960.

O'Neill, Higgins & Latto, New York City (Irwin Bloom, New York City, of counsel), for plaintiffs.

Irving Segal, New York City (William Paul Last, New York City, of counsel), for defendant.

MATTHEW M. LEVY, Justice.

This is a motion by defendant 'for an order striking the purported notice to take the deposition of the defendant before trial * * * in its entirety on the ground that an examination before trial of this defendant has already been held and completed in this action.' The basic action is one for damages for personal injuries allegedly caused the infant plaintiff, a tenant in defendant's premises, by the defendant's negligent operation of the premises.

It appears that, heretofore, plaintiffs had served a notice to examine defendant by a representative familiar with the facts, that defendant produced an officer of the corporation, and that, upon his being examined, it was learned that he had little, if any, knowledge of the facts giving rise to plaintiffs' cause of action or as to the defenses thereto. Plaintiffs asked defendant to produce its resident-superintendent or any other employee having knowledge of the facts, but the examination of such a witness or an adjourned date therefor was not agreed upon. Plaintiffs contend that the parties had arranged that plaintiffs should serve another notice, rather than later resume the examination of defendant on the basis of the original notice, but with a new witness. Defendant disputes any agreement in that regard. In any event, defendant did not submit any other person for examination, and plaintiffs thereafter served a second notice to examine defendant, naming an employee said to have the requisite knowledge. It is this notice which defendant seeks to vacate on this application. The crux of defendant's motion is that plaintiffs were not entitled to serve a new notice, but that, as a matter of law, they should have applied to the court on the basis of the prior notice to examine. Defendant relies upon United States Overseas Airlines, Inc. v. Cox, 283 App.Div. 31, 126 N.Y.S.2d 209.

I recognize, of course, that where, as here, the party to be examined is a corporation, it is the corporate entity that is to be examined 'and not its officers or employees as such. Individual witnesses become the instruments, merely, by which the corporate examination is effected.' And that, if 'the person produced [by the corporation to be examined] has no knowledge or inadequate knowledge, or if the court may be made to see as the result of the examination that another officer or employee has more direct knowledge of the facts, there is adequate power to make appropriate direction to produce such additional witness.' United States Overseas Airlines, Inc. v. Cox, supra, 283 App.Div. 31, 32, 126 N.Y.S.2d 209, 210. And, of course, when there is no judicial leave therefor, the service of a new notice to examine, when one is already outstanding and still in force, is improper (cf. Schriro v. Kennell, 223 App.Div. 786, 227 N.Y.S. 613; Hoover v. Rochester Printing Co., Inc., 2 App.Div. 11, 37 N.Y.S. 419).

It is clear, too, that where there is extant an earlier notice of examination on which the party to be examined has defaulted, the examining party may apply to the court for its enforcement or for an original direction that the adverse party submit to the examination (Glens Falls Insurance Company v. Weiss, 6 Misc.2d 729, 730, 150 N.Y.S.2d 685, 687). Whether or not, in such case, the examining party must apply to the court to enforce the notice or may serve a new notice is the sole question here. In my view, that question is to be determined on the basis of the factual background and procedural status of each case as it arises. Without doubt, if the service of a second notice be intended or appear to harass or prejudice the adverse party, it should not be permitted. If, on the other hand, the notice was served in good faith, and there is no genuine annoyance and no substantial prejudice, it seems to me that a notice may indeed be more welcome, judicially, than a motion.

Certainly, when the corporate party to be examined presented a witness who, as here, undisputedly lacked adequate knowledge of the relevant facts, and then failed to submit a witness having such knowledge, it cannot be heard to...