Brand v. Colgate-Palmolive Co.

Order, entered on March 10, 1964, denying defendant-appellant’s motion for a protective order in a products liability ease, unanimously affirmed, with $20 costs and disbursements to plaintiffs-respondents. The notice to take defendants’ oral testimony before trial on February 5, 1964, was served on January 23, 1964. Defendant-appellant had ample time to move for a protective order which would have automatically stayed the examination. (CPLR 3103, subd. [b].) However, it sought and obtained an adjournment of the examination pursuant to the notice without reservation of any right to object. “By custom and practice, adjournments of examinations before trial, like *671extensions of time to serve answers, contain or should contain reservation of rights to question the regularity or validity of a notice of examination”. (Mossew v. To Market, 3 A D 2d 189, 190.) Where no reservation has been made in a stipulation for an adjournment of an examination before trial, a motion to modify the notice of examination must be denied. (Mossew v. To Market, supra.) Settle order on notice fixing date for examination to proceed. Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ.