Khipl v. Avis Rent-A-Car System, Inc.

James J. Conroy, J.

This is a motion by the plaintiff for an order directing that the answer of the defendants be stricken and that an inquest be directed for failure of the defendants to appear and submit to examination.

The defendants cross-move for an order vacating the default of the defendants and vacating the notice of examination before trial of the said defendants.

The plaintiff served a notice of examination on the defendants’ attorney who refused to submit the defendants to examination on the ground they were both nonresidents. The plaintiff has now waived any right he may have to examine the corporate defendant and the court will address itself only to the question involving the individual defendant who is and was at the time of service of the notice a resident of Cambridge, Massachusetts.

This individual defendant was served in this case pursuant to section 52 of the Vehicle and Traffic Law and, therefore, could not be examined in New York State by notice served on the attorney who appeared for him. The defendants’ attorney waited to move in respect to said notice until a motion was made to strike out the defendants’ answer. The motion of the plaintiff is denied. The motion of the defendants is granted only to the extent of directing that the individual defendant is not required to attend at this time in this court to be examined. It is directed, however, that the plaintiffs may have an examination of this defendant. If the parties can agree on a date when the said defendant will be in the City of New York, then such examination will proceed at such place and time as the parties agree. If the parties cannot agree as to the time and place of such examination, then the said defendant may be examined by open commission, in which event each of the parties will bear his or its own expense. Settle order.