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HAROLD S. GOLDBERG v. JACOB B. FREEDMAN ET AL. (12/11/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


December 11, 1969

HAROLD S. GOLDBERG, RESPONDENT,
v.
JACOB B. FREEDMAN ET AL., APPELLANTS

Concur -- Tilzer, J. P., McGivern, Markewich, McNally and Steuer, JJ.

Order entered August 4, 1969, unanimously reversed, on the law, the facts and in the exercise of discretion, with $30 costs and disbursements to appellants and the motion is granted to the extent of modifying the original order so as to direct that plaintiff first submit to an examination by defendants within 10 days after service of a copy of the order herein, at a time agreed upon between the parties, or which, upon application of the defendant, be fixed by the court, and further direct that upon the completion of plaintiff's examination, all of the defendants should be immediately available seriately and presented in order, it not being necessary that all be present together. Again, we deprecate the consummate waste of time occasioned by attorneys' picayune and pettifogging contentiousness over the manner of conducting an examination of this character. This matter has now occupied the time of four Justices at Special Term and this appellate court. It is conduct of this character that mystifies the public and brings the profession into ill-repute. Nor should there be need of repeating what has been asserted before: In the absence of special circumstances, patently not here present, there should be no deviation from the right of priority of examination normally accorded a defendant. (CPLR 3106 subd. [a]; Buzzell v. Mills, 28 A.D.2d 674; Pakter v. Lilly & Co., 19 A.D.2d 810, Piel v. Lilly & Co., 19 A.D.2d 810; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3106.01, 3106.02.)

19691211

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