Toomey v. Ocean Park Building Corp.

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order granting respondents’ motion to vacate appellants’ notice to examine before trial, as an adverse party, respondent Ocean Park Development Corp. by three of its named employees, and to examine as witnesses said employees. Order modified (1) by striking from the first ordering paragraph the words “in all respects granted” and by substituting therefor the words “granted insofar as further examination is sought of defendant Ocean Park Development Corp. through three named employees, and denied insofar as examination is sought of said employees as witnesses ”, and (2) by striking from the second ordering paragraph the word “vacated” and by substituting therefor the words “amended accordingly.” As so modified, order affirmed, without costs; examination to proceed on five days’ notice. While the denial of a further examination of respondent Ocean Park Development Corp., as a party through three named employees thereof, was proper, within the discretion of the Special Term (cf. Tenenbaum v. Hartford Fire Ins. Co., 231 App. Div. 873; Matter of Phillips, 76 N. Y. S. 2d 922), special circumstances were shown entitling appellants to examine the said three employees as witnesses (Kraushaar v. Gross, 270 App. Div. 953; Cataldo v. Long Is. R. R. Co., 268 App, Div. 1054; Zirn v. Bradley, 257 App. Div. 832; Crellin v. Van Duzer, 267 App. Div. 744; Hartmann v. Cahn, 84 N. Y. S. 2d 334). Rolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.