Oppenheimer v. Shubitowski

— Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered June 2, 1982 in Ulster County, which granted defendants’ motion for a protective order vacating plaintiffs’ cross notice to take oral depositions and directed that plaintiffs proceed by means of written interrogatories. These actions for personal injuries and derivative loss arose from an accident on August 25,1981 wherein the infant plaintiff pedestrian was struck by a motor vehicle owned by defendants Thomas and Renia Shubitowski and being operated by Thomas B. Shubitowski. After joinder of issue, defendants served a notice to take oral deposition upon plaintiffs, and plaintiffs promptly moved to take the oral deposition of defendants. In response, defendants moved for a protective order vacating plaintiffs’ cross notice and compelling plaintiffs to proceed by way of written interrogatories or on a deposition upon written questions to be taken in the State of Michigan where defendants, New York residents at the time of the accident, then resided, contending that requiring defendants to present themselves in New York for examinations before trial would cause an unnecessary and unreasonable expense and inconvenience. Special Term, noting that the amendment to CPLR 3130 (L 1979, ch 197) permits the use of interrogatories in personal injury actions based on negligence, granted the protective order and in lieu of oral deposition directed plaintiffs to proceed by means of written interrogatories directed to defendants or by means of a deposition upon written questions to be taken from defendant within the State of Michigan. Plaintiffs appeal contending that the denial of their opportunity for an oral deposition was an abuse of discretion by Special Term and that Special Term erroneously interpreted the amendment to CPLR 3130 as a direction by the Legislature to make interrogatories an alternative to oral depositions. In our view, Special Term made no such interpretation. The 1022 determination as to the terms and provisions of discovery, as regulated to prevent abuse by protective orders under CPLR 3103 (subd [a]), rests in the sound discretion of the court to which application is made (Matter of U. S. Pioneer Electronics Corp. [Nikko Elec. Corp. ofAmer.], 47 NY2d 914). Special Term merely concluded that in light of the circumstances presented, including defendants’ out-of-State residency, the now permitted use of interrogatories in personal injury negligence actions was the most proper method of discovery and superior to the ofttimes used “eve of trial” method (see Marine Midland Nat. Bank of Troy v Houston, 30 AD2d 610) which, more often than not, because of the inherent uncertainties of scheduling, failed to accomplish its purpose of minimizing the loss of time and money. Such a conclusion finds support in this record and the amendment did not grant any unfettered right to conduct an examination before trial (Yandolino v Cohen, 102 Mise 2d 38). Since there has been no demonstration of an abuse of discretion, the order should be affirmed. Order affirmed, with costs. Mahoney, P. J., Sweeney and Main, JJ., concur; Mikoll and Yesawich, Jr., JJ., dissent and vote to reverse in the following memorandum by Yesawich, Jr., J.