Kagan v. Gair

Mario Pittoni, J. Motion to vacate a notice of examination of Max Wallach, individually and as the president or managing agent of certain named corporations. Neither the corporations nor Wallach are parties to this action, or employees of parties. The notice was allegedly served pursuant to “ section 299 et seq. of the Civil Practice Act and the Rules of Civil Practice ”. Rule 121-a of the Rules of Civil Practice — the only rule under which an examination in an action may he had by notice — pertains only to an examination of a “ party, his agent or employee” (Wax v. Sacks, 280 App. Div. 900). Section 299 of the Civil Practice Act relates to the service of a subpoena and the procedure for compelling compliance with an order on a notice for an examination. But an examination of a witness by notice may be held under section 290 of the Civil Practice Act, if “ special circumstances ” exist as stated in section 288 (President & Directors of Manhattan Co. v. Rom, 176 Misc. 200, affd. 261 App. Div. 841). On a motion to vacate the notice the party desiring the examination must show such “ special circumstances ”. Here, the plaintiff has not done so. The fact that the plaintiff commenced an action against the witness and two of the corporations t with which he is connected at or about the same time that he served the notice and subpoena herein does not justify a finding of hostility or special circumstances warranting an examination in this action between former partners in a public accounting firm. Motion granted.