Green v. Kautex Machines, Inc.

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: This is an employment-related products liability action in which plaintiff seeks an oral examination of the defendant Kautex through its employees "Mr. Kiefer and/or Mr. Rolniczak” who are German nationals residing in Germany. It is claimed that these employees either designed or are knowledgeable concerning the design of the machine implicated in plaintiff’s injuries. In view of the design information possessed by plaintiff and the related documentary material made available by defendants we cannot say that Special Term abused its discretion in deferring until within 10 days before the trial of this action the oral deposition of these employees. We would only add, however, that in the event either of these two witnesses comes to the United States before the trial, defendants must promptly notify plaintiff of their arrival and the witnesses must be made available for oral examination by plaintiff in Erie County within a reasonable time thereafter. Moreover, in the event plaintiff is truly prejudiced by late disclosure, an application for a time extension would seem appropriate (see, CPLR 2004). We need not consider the applicability of "The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters”, since plaintiff did not seek to depose the witnesses in Germany and defendants did not appeal from the order under review. (Appeal from order of Supreme Court, Erie County, Broughton, J. — discovery out-of-State.) Present — Dillon, P. J., Boomer, Green, Pine and Schnepp, JJ.