Gimbel Bros. v. Lee

Appeal by plaintiff from an order of the Supreme Court, Nassau County, entered May 23,1978, which denied its motion to strike the defendant’s note of issue and statement of readiness or, alternatively, to strike the notice for preference for trial. Order modified by adding thereto a provision granting plaintiff leave to depose defendant. As so modified, order affirmed, without costs or disbursements. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days to be given by plaintiff, or at such other time and place as the parties may agree. The plaintiff should be permitted to conduct an examination before trial of the defendant. However, the action should retain its position on the Trial Calendar. Shapiro, J. P., Cohalan, Margett and O’Connor, JJ., concur.