Schwartz v. Greene

Motion by defendant to restore this action to the calendar. This is a stockholder’s derivative action. The note of issue was filed for the December 1958 Term by the moving defendant on November 17, 1958. The action appeared for the first time on the Reserve Calendar of January 19, 1959, and was marked off for the failure of both sides to answer the call. The defendant’s attorney states his office overlooked the publication of the Reserve Calendar and thus failed to answer the call. Plaintiff opposes the restoration and asserts the examination before trial of the defendants is not complete and he cannot proceed without the production of certain documents and further that it may become necessary to bring in some additional defendants. He admits that a motion should have been made to strike this cause from the calendar within 20 days after the note of issue was filed, but claims that through inadvertence and the pressure of other matters, the motion was not made in the time specified in the rule. The papers reveal that the plaintiff has. had more than one year to move for the production of the documents in question and to decide whether to serve process on additional defendants. Moreover, a party may not, in the absence of special circumstances, examine his opponent if he accepts a note of issue without moving to strike it (Price v. Brody, 7 A D 2d 204). Inadvertence and the pressure of other matters do not constitute special circumstances. The motion is granted and the cause is restored and placed upon the Equity Day Calendar for March 10, 1959.