Wahrhaftig v. Space Design Group, Inc.
| Decision Date | 22 January 1970 |
| Citation | 33 A.D.2d 953,306 N.Y.S.2d 863 |
| Parties | Joseph M. WAHRHAFTIG et al., Appellants, v. SPACE DESIGN GROUP, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rosen & Rosen, George H. Rosen, Monticello, for appellants.
Sugarman, Kuttner & Fuss, Howard L. Kuttner, New York City, for respondents.
Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.
Appeal from an order of the Supreme Court at Trial Term, entered October 1, 1969 in Sullivan County, which directed that appellants submit to an examination before trial and that the actions as consolidated remain upon the trial calendar.
These four actions, finally consolidated by virtue of an order entered July 29, 1968, arise out of architectural work performed by Blech & Goldfarb, a partnership, and interior decorating done by The Space Design Group, Inc., in connection with the erection of a restaurant and cocktail lounge on premises allegedly of appellants at Monticello. In the action by Space Design against appellants, pending in New York County before consolidation, an order was entered on December 12, 1966 granting leave to examine appellants, the examination to be in New York County unless the action was removed to Sullivan County by virtue of a motion then pending for the consolidation of said New York County action and another pending in Sullivan County. Said two actions were consolidated by virtue of an order entered January 4, 1967 but the ordered examination was never conducted. Depositions of appellants were taken in 1966 and 1968 in the two actions between appellants and Blech & Goldfarb, originally without notice to Space Design and in which Space Design did not participate. Efforts were made by respondents' attorneys to secure transcripts of the 1966 examinations but they were not received until March 25, 1969. On March 14, 1969 counsel for Blech & Goldfarb filed a note of issue and statement of readiness, reciting that all preliminary procedures in the actions between appellants and Blech & Goldfarb had been completed. Space Design followed on March 31, 1969 with the instant motion to examine appellants, with production of the things as specified in the New York County order and, alternatively, that the consolidated action be removed from, or remain on, the calendar.
The supervision of disclosure is vested in the court in which the action is pending (Smith v. Victory Container Corp., 30 A.D.2d 581, 289 N.Y.S.2d 710), subdivision (a) of CPLR 3103 having been designed to give the court broad discretion and powers to prevent the occasional abuse which may arise in a system of liberal disclosure (Frey v. First Nat. Bank of Fleischmanns, 21 A.D.2d 709, 710, 249 N.Y.S.2d 348, 351; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3103.01). The rigid enforcement of the statement of readiness rule (22 NYCRR 861.10) is to be encouraged (cf. Collins v. Jamestown Mut. Ins. Co., 32 A.D.2d 725, 726, 300 N.Y.S.2d 391, 392) in order to relieve calendar congestion and to foster the orderly disposition and processing of litigated matters and, while it will not be departed from in the absence of a showing of special, unusual or extraordinary circumstances warranting the exercise of the court's discretion (D'Angelo v. Goddard, 29 A.D.2d 333, 287 N.Y.S.2d 1007; Jacobs v. Peress, 23 A.D.2d 483, 255 N.Y.S.2d 492), upon a presentation of unusual and unanticipated conditions, which courts are reluctant to find, a court may permit a party to use disclosure devices even after a statement of readiness has been filed (Shea v. Pellicano, 29 A.D.2d 840, 287 N.Y.S.2d 732; Pioneer Jewelry Corp. v. All Continent Corp., 24 A.D.2d 436, 260 N.Y.S.2d 700; McGuire v. Pick, 8 A.D.2d 800, 801, 187 N.Y.S.2d 893, 895; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., 3402.12).
The discretion of Special Term should not be disturbed since: examinations before trial of appellants had been taken in two of the actions without notice to respondents; responden...
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