Ballin v. Crescent Holding Co.

In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Nassau County, dated October 27, 1969, which denied its motion to vacate plaintiffs’ notice to examine defendant before trial. Order reversed, on the law and the facts, without costs, and motion granted. Plaintiffs served a note of issue without a statement of readiness in November, 1968 and, in September, 1969 served the notice for the pretrial examination of defendant. Notwithstanding plaintiffs’ attorney’s claim of inadvertence for his failure to serve the notice of examination within the 60-day period following the service of the note of issue, provided by the rules of this court (22 NYCRR 675.9), defendant’s motion to vacate plaintiffs’ notice should have been granted. First, having failed to serve the notice for defendant’s pretrial examination within the time provided by section 675.9, plaintiffs are deemed to have waived their right to such an examination. Second, plaintiffs’ attorney’s claim that the notice to examine defendant was not timely served because his secretary, contrary to his written direction, had failed to serve it, is not an “unusual and unanticipated condition” within the meaning of section 675.7 of our rules (Black v. Fisher Bros., 27 A D 2d 836; Jacobs v. Peress, 23 A D 2d 483). Christ, P. J., Hopkins, Kleinfeld, Brennan and Benjamin, JJ., concur.