SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 8, 1969
G. A. C. COMMERCIAL CORPORATION, RESPONDENT,
LA PARDO BROS. EXCAVATING CONTRACTORS, INC., APPELLANT
Appeal by defendant from an order of the Supreme Court, Queens County, dated April 28, 1969, which denied its motion to vacate plaintiff's notice of examination before trial.
Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.
The examination shall proceed on a date to be mutually agreed upon by the parties, or, failing such agreement, on a date specified in a new written notice of not less than 10 days, to be served by plaintiff, such date to be at least 15 days after entry of the order hereon. In an action to recover chattels, an examination pursuant to CPLR 7112 does not bar a general examination of the defendant pursuant to CPLR 3101 et seq. (Yablon v. Yablon, 13 A.D.2d 990). Defendant's continued contesting of plaintiff's right to possession of the chattels and defendant's prosecution of a counterclaim clearly entitle plaintiff to the general examination noticed by it. Similarly meritless is defendant's claim that the complaint is insufficient because plaintiff did not allege the performance by it of conditions precedent contained in a security agreement between the parties. The performance of conditions precedent need not be pleaded (CPLR 3015).
Order affirmed, with $10 costs and disbursements to plaintiff, including the cost of printing plaintiff's appendix.
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