Norman v. Pyramid Cranes Co.

In an action to recover damages for personal injuries, the appeal is from an order granting respondent permission to inspect, photograph, and take measurements of a crane involved in the accident. A statement of readiness for trial was filed under the special rule of this court dated December 19, 1956. A preference was granted, and the action was placed on the trial calendar in the early part of April. Near the end of April, respondent made the motion resulting in the order appealed from. No reason or explanation for the delay was set forth in the moving affidavit. Order reversed, with $10 costs and disbursements, and motion denied. There was no basis for an exercise of discretion in favor of granting the motion. Wenzel, Acting P. J., Murphy, *928Ughetta and Kleinfeld, JJ., concur; Beldock, J., dissents and votes to affirm, with the following memorandum: The granting or denial of a motion for discovery and inspection, whether made before or after the filing of the statement of readiness or the granting of a preference, always rests in the sound discretion of the court to which the application was made. In my opinion, the Special Term, under the facts of this case, properly exercised its discretion. The discovery is relevant to the merits of the action and may produce evidence which is both material and competent upon the trial. Since respondent’s short delay in moving for the discovery in no way prejudiced appellant, the fact that respondent obtained a preference and filed the statement of readiness does not preclude him from obtaining relief to which he is clearly entitled.