Majority
p. 670Jill Brand, an Infant, by Charles J. Brand, Her Guardian ad Litem, et al., Respondents, v. Colgate-Palmolive Company, Appellant, et al., Defendant
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
p. 671
extensions 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.
Cases cited
- Mossew v. To Market, Inc. 3 A D 2d 189 at 190 p. 671