Muss v. Utilities & Industries Corp.
| Decision Date | 25 November 1969 |
| Citation | 61 Misc.2d 642,305 N.Y.S.2d 540 |
| Court | New York Supreme Court |
| Parties | David MUSS, S. Joseph Tankoos, Jr., and Lazard Freres & Co., Plaintiffs, v. UTILITIES & INDUSTRIES CORPORATION and the South Bay Corporation, Defendants. |
Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, for plaintiffs.
Shea, Gallop, Climenko & Gould, New York City, for defendants.
Plaintiffs seek to examine an individual who had been an officer of one of the defendant corporations. They bring their application 'pursuant to CPLR § 3101(a)(4)'. Notice of the application was given solely to the attorneys for the defendants. The individual whose deposition is sought was not advised of the application nor is he represented here.
We suggest that § 3101 CPLR defines in general terms the scope of disclosure and the limitations thereon and that it was not intended as a procedural section. The methods provided for obtaining disclosure begin with § 3102 CPLR. The reference to a motion in § 3101(a)(4) is to any one of the motions which might arise under later sections, as for instance: an application for a protective order (CPLR 3103); where plaintiff seeks to examine a party within 20 days after service of the complaint (Rule 3106(a)), or a prisoner (Rule 3106(c)); or where a subpoena and notice are served to examine a witness (Rules 3106(b), 3107).
With the enactment of the CPLR it was anticipated that disclosure would be had by stipulation or notice in the first instance (CPLR 3102(b)), and as Weinstein-Korn-Miller say, 'Therefore, the normal reaction should be to arrange disclosure amicably with an opponent before bringing the matter to the court's attention.' (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3102.05.)
The approved method for obtaining the examination of a non-party witness is to proceed pursuant to Rules 3106(b) and 3107 CPLR (Spector v. Antenna and Radome Research Associates Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843). When that is done the adversary having been noticed can resist the application and notify the witness of the stay (Rule 1306(b)) or the witness himself might ask for a protective order. Thus all the parties would be before the Court at one time and duplication of effort for the parties and the Court would be avoided.
Here, the plaintiffs without having sought to examine the corporation itself seek to examine a former officer. It should be noted that circumstances are revealed which indicate that the examination of that officer would be desirable and necessary. However, the opposition asserts that the plaintiffs should first examine the corporation by an officer designated by the party and only then, in the event that the necessary information is not obtained, should the plaintiffs ask to examine the non-party witness. Plaintiffs counter and urge that if they examine the non-party witness it may prove to be unnecessary to examine the defendant although they are not prepared to relinquish the right to examine the defendant. In the ordinary case the corporation should in the first instance have the right to designate that officer, etc., by whom it will be examined (Lonigro v. Baltimore & Ohio R.R. Co., 22 A.D.2d 918, 255 N.Y.S.2d 737).
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Ball v. Monroe County
...Commentary (Siegel), § C3101:23; 3A Weinstein-Korn-Miller, § 3101.33. The court agrees with Justice Liff (see Muss v. Utilities & Industries Corp., 61 Misc.2d 642, 305 N.Y.S.2d 540; Bush Homes, Inc., v. Franklin National Bank, supra) that CPLR 3101 is a statute of description rather than of......
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Tavormina v. State
...by the nonparty witness, would be eliminated. (See Spector v. Antenna & Radone Research Assoc. Corp., supra; Muss v. Utilities & Ind. Corp., 61 Misc.2d 642, 305 N.Y.S.2d 540.) Similarly, where a party proceeds by mere subpoena to the nonparty pursuant to CPLR 3106 (subd. [b] ) with notice t......
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Plaza Operating Partners Ltd. v. IRM (U.S.A.) Inc.
...liberal disclosure is always available in the first instance without the need for judicial intervention Muss v. Utilities & Industries Corp., 61 Misc.2d 642, 643, 305 N.Y.S.2d 540 (Nassau Co.1969). However as a special proceeding requires leave of Court for disclosure, the use of any other ......
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Planned Indus. Centers, Inc. v. Eric Builders, Inc.
...further, to avoid a waste of judicial effort (see Spector v. Antenna & Radome Research Assoc. Corp., supra; Muss v. Utilities & Inds. Corp., 61 Misc.2d 642, 305 N.Y.S.2d 540). In the present case appellant's attorney was fully aware of the plaintiff's intention to examine him. Indeed, it wa......