| N.Y. Sup. Ct. | May 9, 1962
Plaintiff in a personal injury action requests permission to file his note of issue with leave to subsequently complete the examinations before trial of the parties.
Section 8 of article IV of the Special Readiness Rule of the Appellate Division, Second Department, requiring the filing of a statement of readiness, provides that in a personal injury action a note of issue may be filed prior to filing the statement of readiness if it accompanies an application for a preference. Paragraph 9 of said rule further provides that where a statement of readiness has not been filed any party may serve a notice of examination before trial within 60 days after such filing of the note of issue and must complete said examination within 90 days after the service of said notice. Within that 90-day period, the plaintiff may, of course, move in accordance with the appropriate section of the Civil Practice Act or the Rules of Civil Practice to enforce his right to the examination and he may have the further relief provided by section 6 of article IV if he does not complete the examination. Consequently, the present motion is inappropriate, as the plaintiff may without permission, and assuming all the other prerequisites of the special rule have been met, file his note of issue and place the action on the calendar. The motion is accordingly denied as unnecessary.