Lee v. Stevens ( 1970 )

J. Robert Lynch, J.

The defendant moves to strike from the trial calendar the note of issue filed herein by the plaintiffs.

The summons and complaint were served on February 4, 1970. The answer and a demand for a bill of particulars were served on February 11, and the bill of particulars was served on February 16. On March 19, the plaintiffs filed the note of issue containing a certificate of readiness. The same day the defendant served a notice to examine before trial. The notice of motion was served March 23.

The defendant contends that the note of issue should be stricken because, with the examination pending, the case is not ready for trial. The plaintiffs argue that the defendant’s right to examine was waived when he did not demand it within 20 days after the service of the bill of particulars.

A party has the right to examine any person before trial upon 10 days’ notice (CPLR 3107). No particular time for giving the notice is expressed, except that the plaintiff waives the right by filing a note of issue with a certificate of readiness (Andresen v. Buffalo Tr. Co., 23 A D 2d 813), and the defendant waives it by not moving to strike a note of issue within 20 days of its filing (Cerrone v. S’Doia, 11 A D 2d 350).

The defendant’s motion is timely. The petition must be granted.