Sparacino v. City of New York , 445 N.Y.S.2d 497 ( 1981 )

In actions, inter alia, to recover damages for wrongful death, defendant Model Imperial Beauty Supply Co., Inc., appeals from so much of an order of the Supreme Court, Queens County (Hammer, J.), dated April 28,1980, as, upon reargument, adhered to that portion of the prior determination of the same court, dated February 13, 1980, directing it to produce one Nicholas Adamo, Jr., a nonparty witness, for an examination before trial. (Said defendant’s appeal from the order dated February 13, 1980 was dismissed by order of this court dated January 13,1981. In any event, that order was superseded by the order granting reargument.) Order dated April 28,1980 modified by deleting the last two sentences thereof and substituting provisions (1) vacating the February 13, 1980 order insofar as it directed defendant Model Imperial Beauty Supply Co., Inc., to produce the nonparty witness Adamo and (2) granting the motion of plaintiffs in Action Nos. 1 and 2 for an order permitting them to conduct an examination before trial of the nonparty witness Nicholas Adamo, Jr., and directing the said plaintiffs to comply with CPLR 3106 (subd [b]). As so modified, order affirmed insofar as appealed from, without costs or disbursements. The examination should proceed as soon as practicable. It was error to thrust upon defendant Model Imperial Beauty Supply Co., the burden of producing its former employee, Nicholas Adamo, Jr., a nonparty witness whose examination was sought by plaintiffs-respondents (see Lewis v Jewish Guild for Blind, 32 AD2d 566; Spector v Antenna & Radome Research Assoc. Corp., 25 AD2d 569; cf. McGowan v Eastman, 271 NY 195, 198). Cohalan, J. P., O’Connor, Thompson and Bracken, JJ., concur.