Spector v. Antenna & Radome Research Associates Corp.
| Decision Date | 28 February 1966 |
| Citation | 25 A.D.2d 569,267 N.Y.S.2d 843 |
| Parties | Norman SPECTOR, Respondent, v. ANTENNA AND RADOME RESEARCH ASSOCIATES CORP., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marcus, Maltinsky & Marcus, Brooklyn, for appellant; Robert B. Marcus, Brooklyn, for counsel.
Brown, Kanfer & Minches, Hicksville, for respondent; Herman Kanfer, Hicksville, of counsel.
Before BELDOCK, P. J., and CHRIST, BRENNAN, RABIN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action inter alia to recover damages for breach of an employment contract, defendant appeals from an order of the Supreme Court, Nassau County, entered September 21st, 1965, which denied its motion for a protective order (CPLR 3101).
Order reversed, with $10 costs and disbursements; motion granted; and plaintiff's notice to examine Sheldon A. Langer vacated, without costs.
Plaintiff, seeking to examine an independent accountant retained by defendant, served a notice to take the accountant's deposition on defendant's counsel. He did not, however, serve a subpoena on the accountant. At Special Term, as well as on appeal, plaintiff argued in opposition to defendant's motion that the accountant was either an agent or a non-party witness whose examination was required by special circumstances. No affidavit was submitted by the accountant. Whether the accountant is defendant's agent or a non-party witness, service of a subpoena upon him was necessary (CPLR 3106, subd. [b]). By such service an agent or non-party witness is given an opportunity to avail himself of his right to move for a protective order (CPLR 3101). Plaintiff's contention that service of a subpoena could be made after the entry of Special Term's order directing the accountant's examination would lead to waster of judicial effort, since the accountant might then move for a protective order. Thus, what might have been determined in one sitting will have required two determinations with at least part, if not all, of the previous motion papers subject to an unnecessary review. Such a result is directly contrary to the primary purpose of article 31 of the CPLR, which envisages a maximum disclosure of facts with a minimum of judicial supervision (see 1st Report of Temporary Commission on the Courts, Leg.Doc. [1957], No. 6[b], p. 122).
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...supervision (see 1957 Report of Temporary Commission on the Courts, N.Y.Legis.Doc., 1957, No. 6p. 122; Spector v. Antenna & Radome Research Assoc. Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843). To ascertain what is discoverable, and by whom, one should look to section 3101, which is a statute of ......
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...party to the action must be given notice, pursuant to CPLR 3107, of the intended examination. See Spector v. Antenna and Radome Research Associates Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843; Bush Homes, Inc. v. Franklin National Bank, 61 Misc.2d 495, 305 N.Y.S.2d 646; CPLR 3101 Practice Commen......
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...have not been afforded an opportunity to be heard on this application (CPLR 3106 (b); CPLR 3103; Spector v. Antenna and Radome Research Associates Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843). The denial of this relief is without prejudice to plaintiff's taking the testimony of the witnesses in ......
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...whether he is plaintiff's agent or a nonparty witness, service of a subpoena upon him is necessary (Spector v. Antenna & Radome Research Assoc. Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843). Under the circumstances, defendant should have the opportunity to examine Mr. Lipson without losing the pr......