Libson v. Novack

204 Misc. 489 | N.Y. Sup. Ct. | 1953

Matthew M. Levy, J.

This is a motion by plaintiff to examine the defendant before trial in a negligence action. The only issue is as to the time and place for the taking of the deposition.

The defendant maintains an office for the regular transaction of his business in New York County; that is where the plaintiff seeks to conduct the examination. And the plaintiff wishes to proceed with the pretrial deposition at the present time. On the other hand, the defendant urges that he is a resident of Sullivan County, actively operating and managing a large bungalow and hotel colony there, which employs about 300 persons, and accommodates approximately 1,200 guests; and that since the present is “ his busy season ”, it would be an undue hardship to require him to attend now in New York City. He consents to the examination, but urges- that it be held in Sullivan County.

The facts here point up the distinction I sought to make in Lowenberg v. Stafford, (204 Misc. 487), decided simultaneously herewith. If the plaintiff insists upon an immediate examination, it will be held in Sullivan County. Otherwise, the defendant will be directed to appear in New York County, but during the month of October, 1953. Settle order (Civ. Prac. Act, § 300).