Martinez v. Union Free School Dist. No. 4, Town of Babylon
| Decision Date | 17 January 1964 |
| Citation | 41 Misc.2d 661,246 N.Y.S.2d 165 |
| Court | New York Supreme Court |
| Parties | John MARTINEZ, Jr., et al. v. UNION FREE SCHOOL DISTRICT NO. 4, TOWN OF BABYLON, et al. |
Sheehan, Finegan & Courtney, New York City, for plaintiffs.
E. Edan Spencer, Hempstead, for Preston-Brady Co., Inc.
William Beasley, Jr., Riverhead, for Frederic P. Weidersum Associates.
Bernard Helfenstein, Brooklyn, for Union Free School Dist. No. 4, Town of Babylon.
Joseph F. Minutolo, New York City, for Sea Cliff Construction Corp.
A motion is made by defendant, Union Free School District No. 4, Town of Babylon, to vacate plaintiffs' notice to take an oral examination of two named employees of said defendant. (CPLR § 3103.) The plaintiffs oppose this application and cross-move for the inspection of documents specifically described in their notice.
Upon plaintiffs' prior notice an employee was produced by defendant School District and examined. However, plaintiffs then and now request the production of two additional employees. During the course of the prior examination counsel for these parties engaged in a colloquy with reference to the taking of further depositions. Apparently there was a misunderstanding. The result was the within exchange of motion papers right after plaintiffs served their second notice of examination as to the other two employees named therein.
This defendant corporate entity has a clear right to produce any officer or employee with knowledge of the facts for examination it chooses, in the first instance. However, following such initial examination specific others may be made to appear for the same purpose where this is demonstrated to be necessary; (Hansen v. City of New York, 283 App.Div. 891, 130 N.Y.S.2d 3; Torchio v. Nacirema Operating Co., Inc., 283 App.Div. 675, 127 N.Y.S.2d 338.) If such other employees are not produced by agreement the party who noticed the examination of the corporate body (here the plaintiffs) may then apply to the court for the direction of these appearances. (Kozak v. 244 East 2nd Realty, Inc., 25 Misc.2d 437, 196 N.Y.S.2d 35 .) It is interesting to note that, in a proper case, the denial by Special Term of such continuation has been held to be an improvident exercise of discretion. (Tetrad Co., Inc. v. Rosch, 15 A.D.2d 928, 225 N.Y.S.2d 522.)
At any rate, when a dispute has arisen as to the existence of any agreement to produce other employees, it is not absolutely required that the examining party seek enforcement of its first...
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