Hillcrest Terrace, Inc. v. Zaubler , 196 N.Y.S.2d 152 ( 1959 )

Vincent A. Lupiano, J.

Motion for examination before trial of an officer of the plaintiff corporations other than the one already examined, and for an examination of both these officers as witnesses. It appears that before the completion of the examination already had, plaintiff filed a statement of readiness; further, while said officer was examined rulings were sought on objections based on the ground that such testimony could be elicited only as a witness, not as a representative of corporate parties. These objections were upheld and the testimony thus restricted.

Since an extensive examination of the plaintiff corporations was already had, and because it does not appear that the officer who was produced had insufficient knowledge of the facts, that branch of the motion seeking continuance of the examination of the corporate parties through another officer is denied. (See Schacht Steel Constr. Inc. v. Brecher, 2 A D 2d 967.) Another situation is presented, however, with respect to examination of two individuals involved herein as witnesses. It is clear that the earlier examination, extensive as it might have been, did not include examination of that person as a witness.

Since both he and the other corporate officer, because of their relationship with the plaintiff corporations, must be categorized as hostile witnesses (5 Carmody-Wait, New York Practice, § 62, p. 459), defendant should have an opportunity to examine them as such. The premature filing of the statement, of readiness before completion of the earlier examination herein, and before defendant could ascertain whether additional examinations were necessary, warrants entertainment of this application (Price v. Brody, 7 A D 2d 204; McGuire v. Pick, 8 A D 2d 800).

Motion is, therefore, granted to the extent of ordering the examination of Louis A. Brown and David L. Graff as witnesses pursuant to section 288 of the Civil Practice Act on condition that the motion to strike from the General Jury Calendar is granted (Price v. Brody, supra).

Settle order fixing the time and place of examination.