Rapillo v. Saint Barnabas Hospital ( 1983 )

—Order, Supreme Court, Bronx County (Kirschenbaum, J.), entered November 27, 1982, granting plaintiff’s motion to strike defendants’ answers for failure to appear for oral examination to the extent of directing defendants to appear for oral examination and denying defendants’ cross motion for a stay of defendants’ oral examination modified, on the law, without costs or disbursements, to grant defendants’ cross motion to the extent of giving defendants priority of examination and, except as thus modified, affirmed. This action for wrongful death and conscious pain and suffering is based on alleged medical malpractice in defendants’ care and treatment of the deceased, an uncontrolled diabetic patient. Defendant Criscione established priority of deposition by notice dated December 7, 1981 calling for oral examination of the plaintiff administrator on May 19, 1982. In the interim, plaintiff served a bill of particulars. On June 21,1982, defendants obtained an order directing plaintiff to serve a further bill of particulars to cure an inadequate, and essentially boilerplate response to defendants’ demands with respect to their respective acts of negligence. Instead of complying with the court’s directive, plaintiff moved to reargue and served defendants with a notice of examination calling for the taking of depositions even before the return date of the motion to reargue. Defendants did not appear for examination, as required, and plaintiff moved to strike defendants’ answers. Defendants cross-moved for a stay of their examination pending a decision on plaintiff’s motion to reargue and for a direction that plaintiff also appear for examination. Special Term granted plaintiff’s motion to the extent of directing defendants to appear for oral examination and denied the cross motion, finding that defendants had failed to show substantial prejudice by appearing for oral examination. We modify only to the extent of preserving defendants’ right to priority. In providing that leave of the court is required before a plaintiff may, within 20 days after service of the complaint, serve a notice of the taking of a deposition, CPLR 3106 (subd [a]) impliedly mandates that the party who first notices the deposition obtains priority. The reason for the priority is fairly obvious. “[T]he defendant is blameless until the plaintiff proves him otherwise; therefore, in the absence of special circumstances, he should be given the chance to examine first in order to find out what the case is about.” (3 Weinstein-Korn-Miller, NY Civ Prac, par 3106.02.) We discern no reason to deprive defendants of the priority that is rightfully theirs. That they did not conduct the deposition of plaintiff noticed for May 19, 1982 is, no doubt, partially attributable to their efforts on another front to obtain a bill of particulars which, at least as to the liability demands, would provide them with more than banal generalities. Concur — Sullivan, Asch and Milonas, JJ.