SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1968
ARTHUR R. NERSESIAN, DOING BUSINESS AS ROCK MOUNTAIN VALLEY FARM, APPELLANT,
HUMANE SOCIETY OF THE UNITED STATES ET AL., RESPONDENTS
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum decision by Reynolds, J.
Appeal from an order of the Supreme Court, Ulster County, granting respondents' motion made pursuant to CPLR 3122 to vacate a notice for discovery and inspection. On a prior appeal in this case (29 A.D.2d 722) this court affirmed Special Term's denial of a motion for an examination before trial subsequent to the filing of a note of issue and a certificate of readiness premised on a finding that there was no basis "to permit a departure from the statement of readiness rule" and of "inexcusable laches". In the instant proceeding appellant seeks discovery and inspection of virtually the same items he previously sought but now pursuant to CPLR 3120 and has again been rebuffed by Special Term for the identical reasons that his prior motion was denied. Of course, a party is not limited to the utilization of one disclosure device (see CPLR 3102; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3102.01) and thus the prior denial does not mandate a similar result here. However, we find no more compelling reasons advanced in the instant case to disturb Special Term's discretion than were presented on the prior appeal and, accordingly, the order should be affirmed.
Order affirmed, with costs.
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