Carberry v. Bonilla

Oct 30, 1978
Versions:65 A.D.2d 613
409 N.Y.S.2d 551
1978 N.Y. App. Div. LEXIS 13302

In a negligence action to recover damages for personal injuries, defendant Weinfurt appeals from an order of the Supreme Court, Suffolk County, dated July 11, 1977, which denied his motion for a protective order vacating plaintiff’s notice to take deposition upon oral examination. Order affirmed, without costs or disbursements. The examination shall proceed at a time and place to be fixed in a written notice of not less than 15 days, to be given by plaintiff, or at such other time and place as the parties may agree. "Absent a showing of hardship, the nonresidence of a defendant does not preclude an examination in the county where the action is pending” (Gazerwitz v Adrian, 28 AD2d 556, 557; Cooper v Met Merchandising, 54 AD2d 859). At bar, the motion for a protective order was based solely upon the affirmation of the attorney for the appellant, and did not state any facts to support the conclusory assertion of hardship. We also note that no objection was taken to the place of the examination, which ordinarily would be Suffolk County and not Nassau County. Hopkins, J. P., Martuscello, Gulotta and Shapiro, JJ., concur.