Trimmer v. Van Bomel , 409 N.Y.S.2d 750 ( 1978 )

—Order, Supreme Court, New York County, entered April 21, 1978, granting defendant’s motion to the extent of striking action from Trial Calendar and reopening the examination before trial of plaintiff, unanimously reversed, on the law and on the facts, and in the exercise of discretion, with $50 costs and disbursements of this appeal to appellant, and the motion is in all respects denied. On 41 separate days, commencing December 12, 1974 and ending July 11, 1977, the defendant conducted an exhaustive and detailed examination of plaintiff. The deposition consists of 42 volumes with a transcript of approximately 6,500 pages. Thereafter, in October, 1977, pursuant to leave previously granted, plaintiff placed the action on the Trial Calendar and moved for a calendar preference which was granted. In January, 1978, defendant’s motion to strike .plaintiff’s statement of readiness was denied, as was defendant’s accompanying application for leave to conduct further pretrial discovery. Following oral argument on March 20, 1978, the case was set down for trial on March 27, 1978. Defendant then moved to reopen the examination before trial based upon evidence allegedly newly discovered and further moved to strike the action from the calendar, resulting in the order here appealed. We appreciate that the litigation is a complicated one (e.g., 51 AD2d 922, 51 AD2d 920, 45 AD2d 935) and that extensive pretrial examinations were justified. Nor do we doubt that the matters concerning which defendant seeks to question plaintiff further are relevant to the lawsuit, although it is far from clear that defendant had not been adequately alerted to this possible area of interrogation some time previously. Given the extraordinarily exhaustive, detailed, and time-consuming examination of the plaintiff that had occurred over a period extending almost three years, we believe it was an improvident exercise of discretion to strike the action from the Trial Calendar and direct reopening of plaintiff’s examination beforé trial at so late a date in the litigation. Concur — Kupferman, J. P., Evans, Lane, Sandler and Sullivan, JJ.