Bingham v. Wells, Rich, Greene, Inc. , 311 N.Y.S.2d 509 ( 1970 )

Order entered April 2, 1970, modified on the law and the facts and in the exercise of discretion, without costs and without disbursements, to the extent of striking items 1, 2 and 4 from plaintiff’s supplemental notice of examination of defendant and directing that the examination of defendant proceed after defendant has examined plaintiff on a date to be set by the parties within 20 days after entry of the order filed herein, and otherwise affirmed. Under items 1, 2 and 4 plaintiff, in this action for damages for breach of an oral contract of employment, seeks all correspondence and memoranda and employment agreements between defendant and some 43 individuals other than plaintiff, regarding employment of advertising agencies and other employees. These records are neither material nor necessary on the question of plaintiff’s agreement with defendant. Nor would such records aid plaintiff in establishing a general custom in the advertising industry. This record does not justify a departure from the general rule that the order of priority of examination will not be disturbed except upon a showing of special circumstances. Here defendant originally had priority by service of its notice with its answer (CPLR 3106, subd. [a]). There is no justification to disturb defendant’s clear right to priority of examination. Concur — Capozzoli, J. P., Nunez, McNally, Steuer and Tilzer, JJ.