Kallen v. Equity Funding Corp. of America , 338 N.Y.S.2d 628 ( 1972 )

Order, Supreme Court, New York County, entered on June 8, 1972, which granted defendant’s application for a protective order under certain conditions, unanimously reversed, on the law and the facts and in the exercise Of discretion, and the protective order denied. Appellant shall recover of respondent $40 costs and disbursements of this appeal. Defendant has completed the examination before trial of the plaintiff, and the question is the place of the examination by the plaintiff of the defendant by a person familiar with the facts. The motion for a protective order is to require the examination of the defendant to be held in California, and the decision of the Court at Special Term provided, at the plaintiff’s election, for either written interrogatories or an open commission with both parties to bear their own expenses. In view of the fact that the defendant has an office in New York and has had one through its predecessor since 1953, where the plaintiff was first employed as a salesman for mutual funds, it would be an undue burdeñ on the plaintiff to require that he conduct his discovery proceeding in California. Moreover, he had been given to understand that he would have the opportunity to conduct the deposition in New York City. (Meaney v. Loew’s Hotels, 26 A D 2d 263; United Refrigerator Co. v. Rose, 19 A D 2d 809.) Settle order on notice specifying the date for the examination of the defendant by an appropriate party in New York City. Concur — McGivern, J. P., Markewich, Nunez, Kupferman and Murphy, JJ.