Shields v. King David Bungalow Colony, Inc.

• Decision Date: 22 February 1971
• Citation: 36 A.D.2d 642,319 N.Y.S.2d 800
• Parties: Fannie SHIELDS, etc., Respondent, v. KING DAVID BUNGALOW COLONY, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 800

319 N.Y.S.2d 800

36 A.D.2d 642

Fannie SHIELDS, etc., Respondent, v. KING DAVID BUNGALOW COLONY, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 22, 1971.

Tropp, Goldfinger & Berson, Leo E. Berson, New York City, for appellant.

Before HOPKINS, Acting P..j., and MUNDER, MARTUSCELLO, LATHAM and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, defendant appeals from an order of the Supreme Court, Kings County, dated August 27, 1970, which (1) denied its motion to vacate plaintiff's notice to examine it before trial and (2) granted plaintiff's cross motion to direct defendant to appear for such examination.

Order reversed, with $10 costs and disbursements; defendant's motion granted; and plaintiff's cross motion denied.

Plaintiff served a note of issue without a statement of readiness in January, 1970, and in May, 1970 served a notice to examine defendant before trial.

In our view, plaintiff's failure to serve the notice of examination within the 60-day period following the service of the note of issue as provided by the rules of this court (22 NYCRR 675.9) requires that his notice be vacated (Ballin v. Crescent Holding Co., 34 A.D.2d 803, 311 N.Y.S.2d 790; Black v. Fisher Bros., 27 A.D.2d 836, 277 N.Y.S.2d 747). On these papers plaintiff has not demonstrated that she comes within any of the exceptions to said rule (see 22 NYCRR 675.6, 675.7).