31 F.R.D. 518 | E.D.N.Y | 1963
The defendant moves, pursuant to Fed. R.Civ.P. 37(b), to dismiss the complaint for the plaintiff’s refusal to submit to the taking of his deposition by the defendant on October 23, 1962 pursuant to a notice served upon the plaintiff’s attorney and filed with the Clerk of this Court on September 25,1962.
This case is typical of the abuse by attorneys of Calendar Rule 1 of this Court, adopted February 26, 1957, effective March 1, 1957, relating to the filing of a note of issue and a statement of readiness. That rule requires the attorney for the party filing the note of issue to certify to several facts including the fact that interrogatory proceedings have been completed and that the parties have held or had an opportunity to hold “necessary
The plaintiff contends that this motion cannot be entertained by the Motion Part Judge because Rule 9(1) of the General Rules of this Court provides that no motion, except for judgment or other final relief will be entertained after a case has reached the permanent calendar, unless the moving party has first obtained an order from the Civil Part I Judge granting permission to make such a motion. It is clear that the defendant’s motion seeks final relief and, therefore, does not come within Rule 9(Z) of the General Rules of this Court.
This case is improperly on the trial calendar of this Court and should be removed therefrom. The defendant’s motion to dismiss the complaint is granted unless the plaintiff submits to the taking of his deposition, pursuant to the notice heretofore served, on or before twenty days from the date hereof.
Settle an order within ten days from the date hereof removing this case from the trial calendar and dismissing the complaint unless the plaintiff submits to the taking of his deposition as herein-above provided.