Brooklyn Express Co. v. Key Food Stores Co-operative, Inc.

In an action to recover damages inter alia for alleged breach of contract, defendants Key Food Stores Co-operative, Inc., and Allen Newman appeal from an order of the Supreme Court, Kings County, dated June 19, 1972, which denied their motion to take an oral deposition of a proposed nonparty witness. Order reversed, without costs, and motion granted, without costs. In our opinion, the age of the proposed nonparty witness, to wit, almost 75 years, coupled with his residence in Florida for the major part of the year, constitutes an adequate special circumstance under CPLiR 3101 (subd. [a], par. [4]). If the examination is to be held in Florida, the expenses thereof shall be paid by appellants. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.