Lane Bryant, Inc. v. Cohen

Order, Supreme Court, New York County (Okin, J.), entered May 7, 1981, which denied plaintiff’s motion for a protective order vacating Demand No. 4 of the defendant’s demand for disclosure and inspection and which granted pliantiff’s motion to examine a non-party witness in Florida by means of written questions, modified, on the law, without costs and disbursements, to the extent of directing plaintiff to supply defendant-respondent-appellant with the names only of those suppliers and vendors with whom said defendant dealt and from whom plaintiff has obtained written statements concerning said defendant, and, as so modified, affirmed. Regarding plaintiff’s motion to examine a nonparty witness who resides in Florida by means of written questions, we read CPLR 3108 as permitting movant the privilege of electing whether to proceed by written questions or by open commission (oral examination). Of course, the granting of such relief is without prejudice to defendant’s conducting the out-of-State examination orally, if defendant so wishes (see 3 A Weinstein-Korn-Miller, NY Civ Prac, par 3108.03). Insofar as Special Term denied plaintiff’s motion for a protective order and directed plaintiff to turn over all written statements given to plaintiff or otherwise in plaintiff’s possession from suppliers and vendors with whom defendant dealt which statements concern defendant, we direct that defendant is entitled in the first instance only to the names of those suppliers and vendors and not to the statements given by them (see Barton v Diesel Constr. Co'., 47 AD2d 729; Zellman v Metropolitan Transp. Auth., 40 AD2d 248). On this record defendant has not demonstrated difficulty or impossibility of access to these witnesses or that they have refused respond to his requests requests for information. Concur — Murphy, P. J., Ross and Lupiano, JJ.