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GAIL C. MCDONALD v. GORE MT. SKI LIFT CORPORATION (09/17/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


September 17, 1968

GAIL C. MCDONALD, AS ADMINISTRATRIX OF THE ESTATE OF JAMES E. MCDONALD, III, DECEASED, APPELLANT,
v.
GORE MT. SKI LIFT CORPORATION, RESPONDENT

Appeal from an order of the Supreme Court at Special Term entered January 15, 1968 in Albany County granting defendant's motion for an examination before trial of James E. McDonald as a witness.

Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

Memorandum by the Court. Examinations before trial are permitted of "any person where the court on motion determines that there are adequate special circumstances." (CPLR 3101, subd. [a], par. [4].) Thus, examinations of a witness are permitted when it is established that the witness is hostile, or where the witness has special or exclusive knowledge of the facts in issue. (Southbridge Finishing Co. v. Golding, 2 A.D.2d 430.) In support of the motion the defendant submitted only an affidavit by an attorney stating on information that the said James E. McDonald was a witness to the accident and had special knowledge of the facts and circumstances surrounding its happening. This affidavit, standing alone, is insufficient to sustain the burden upon the party seeking the examination of establishing special circumstances to entitle it to the examination. (Posner v. Morgenstern, 19 A.D.2d 811; Di Geronimo v. Plotnick, 39 Misc. 2d 497.) The motion papers are in other respects deficient in meeting the general and well understood requirements in cases such as this.

Disposition

Order reversed, on the law and the facts, without prejudice to a renewal of the motion upon a proper showing of the facts, with costs to appellant.

19680917

© 1998 VersusLaw Inc.



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