Looker v. Hennessy
| Decision Date | 09 July 1964 |
| Citation | 256 N.Y.S.2d 666,45 Misc.2d 260 |
| Parties | Cynthia LOOKER, an Infant, by Elizabeth Looker, her Guardian ad Litem, and Elizabeth Looker, Individually, Plaintiffs, v. Richard HENNESSY and Charles H. Crowell, III, Defendants. |
| Court | New York Supreme Court |
Michaels & Michaels, Syracuse, Beverly Michaels, Syracuse, of counsel, for plaintiffs.
Bond, Schoeneck & King, Syracuse, Lloyd G. Fix, Syracuse, of counsel, for defendants.
Plaintiff, an infant now twelve years of age, moves pursuant to Section 3101 et seq. CPLR for an order directing the examination of defendant Crowell at a time to be fixed by the Court relative to material facts in the case as presented by the pleadings. the motion is based on the pleadings and the affidavit of plaintiff's counsel setting forth the necessity for the relief sought.
Defendant Crowell did not submit any answering affidavits nor any memorandum of law on this motion.
In resolving this motion, the Court is well aware of the Special Rule respecting calendar practice as adopted by the Fourth Department. Similar rules have been adopted by other departments. It is strict and it should be applied strictly. As a matter of fact, the Courts seem to be in uniform agreement that one of its chief designs, if not its paramount purpose is to counteract and, hopefully, to eliminate calendar congestion.
The rule also places upon counsel the burden of making certain that the certificate of readiness is factual in its import. There also is the twenty-day motion period, as a saving clause, if there is need on the part of the movant or his opponent to bring on a motion to strike the case from the calendar. (As the Court understands it, the chief object and design of the Rule is to relieve and avoid calendar congestion).
On October 4, 1961, at about 6:50 p. m., the infant plaintiff, the eight years of age, was a passenger in defendant Crowell's automobile when it came into contact with the automobile of defendant Hennessy at the intersection of Court Street, on which street Crowell was east bound, and Genant Drive, on which latter street the defendant Hennessy was south bound. The plaintiff was severely injured about the face and mouth with resultant permanent scars.
Summons and complaint were served on December 15, 1961, and issue was joined by defendant Crowell on March 1st, 1962. Defendant Crowell denies liability for the accident. The infant plaintiff contends that there will be no prejudice to defendant if the examination of him by plaintiff is allowed to proceed at this time. She also claims continuing cooperation on her part with defendant in that she has permitted him to have several physical examinations of her. Further does she stress the fact that no delay in the trial of the action will result from the granting of her motion. The Court concurs in this position and there will result no calendar loss of position by the granting of this motion. It may not be a controlling factor but plaintiff claims the delay in her examination of defendant Crowell has been due to pending negotiations between the parties on the question of damages.
The added and important position of the plaintiff is that defendant Crowell's examination is necessary and material to plaintiff's proof for the reason that she is an infant, now some eleven or twelve years of age. On the question of defendant Crowell's negligence, she is charged with the burden of proof. The defendant Crowell was the only adult in his vehicle in which the infant plaintiff was a passenger and therefore, so far as Crowell is concerned, the facts of the accident and his actions are within his sole and exclusive knowledge.
On motions of this type involving the special calendar rule the Court is confronted with the leading case in this Department (which, however, was on the subject of a bill of particulars demand) of Cerrone v. S'Doia, Fourth Department, 11 A.D.2d 350, 206 N.Y.S.2d 95, wherein the Court stated that the special readiness rule must be strictly enforced, and cited in support of its determination the following cases: Price v. Brody, First Department, 7 A.D.2d 204, 181 N.Y.S.2d 661; Hoover, III v Ruth, 8 Misc.2d 496, 170 N.Y.S.2d 361; Finn v. McLaren, 14 Misc.2d 743, 180 N.Y.S2d 344; Walzer v. Rettner, 20 Misc.2d 540, 193 N.Y.S.2d 866.
The above Price case arose in the First Department in 1959. The special calendar rule was similar in that department to our Fourth Department rul...
To continue reading
Request your trial
-
Rosado v. Valvo
...here disclosed are a sufficient basis for the exercise of the court's discretion in the interests of justice (Looker v. Hennessey, 45 Misc.2d 260, 256 N.Y.S.2d 666). Accordingly that part of the motion which requests a vacating of the notice of deposition by reason of the filing of the stat......