Wunner v. Maguire , 410 N.Y.S.2d 897 ( 1978 )

In an action, inter alia, for fraud and breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County, entered July 26, 1978, as, upon their motion for a priority to first take the depositions of the defendants and to have the taking of such depositions supervised by a Justice, directed that the depositions were to proceed in accordance with the priority of the notices and failed to direct that there be supervision by a Justice. Order modified by deleting therefrom the provision that the depositions are to proceed in accordance with the priority of the notices and substituting therefor a provision granting a priority to the plaintiffs to first take the depositions of the defendants. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to the plaintiffs. The examinations shall proceed at the place designated in the order under review, at a time to be fixed by the plaintiffs in a written notice of not less than 10 days, or at such other time and place as the parties may agree. In this action one of the individual defendants is an attorney who allegedly represented the plaintiffs and entered into a business relationship with them. The pertinent facts as to the issues are within the sole knowledge of the defendants. The circumstances merit that the plaintiffs have priority of examination (see McKenzie Mgt. & Research Co. v Lee Nat. Corp., 36 AD2d 602; cf. Solow v Solow, 5 AD2d 848). Latham, J. P., Rabin, Cohalan and Margett, JJ., concur.