Levy v. WexlerLevy v. Wexler
In an action to recover damages for personal injuries, the defendants Irving Wexler and Mildred Wеxler appeal from an order of the Suрreme Court, Queens County, dated January 17, 196-2, which deniеd their motion to examine before trial their codefendant, T. I. McCormack Trucking Co., Inc. In their аnswer to the third amended complaint, said defendants Wexler sought judgment over against their said codefendant in the event that plaintiffs should obtain judgmеnt against them. Order affirmed, with $10 costs and disbursements. The action was noticed for trial for the November 1958 Term and a readiness statement was duly filed. No motion to strike the action from the calendаr was made; the case appearеd on the Day Calendar in November, 1961; and it was set dоwn for trial in January, 1962. Said defendants Wexler contend it was not until then that they had notice that the cоdefendant McCormack had appeаred in the action, since a copy of MсCormack’s answer had not been served upon them. It is not disputed that the note of issue addressed, among others, to the attorneys for McCormаck, was served upon the defendants Wexler. It is further undisputed that they themselves served a jury demand, dаted October 15-, 1958, on McCormack’s attorneys, and that on September 1, 1960 an order for substitution of аttorneys for McCormack was served upon thеm (the defendants Wexler). Under the circumstancеs disclosed by this record, the Trial Term did not improvidently exercise its discretion in denying this motion. The faсt that here codefendants are involved rаther than a plaintiff and defendant, did not bar the аpplication of the special rule of this court (Rules App. Div. [2d Dept.], Special Rule, eff. Jan. 15, 1957, as amd.) requiring the filing of a statement of readiness as a condition to placing the aсtion on the calendar. Its purpose was to keep off the Trial Calendar all those actions which are not actually ready for triаl. Under this rule, each party to the action is dеemed to have assented to the statements contained in the readiness statement and to have waived his right to pursue the pretrial proceedings allowed by the Civil Practice Act and Rules of Civil Practice, unless, within 20 days after the filing of the readiness statement, he shall have moved tо strike the action from the calendar (cf. Morrison v. Sam Snead Schools of Golf of New York, 13 A D 2d 986; Cerrone v. S’Doia, 11 A D 2d 350, аnd cases therein cited). Beldock, P. J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur.