Jenkins v. Brod

¶1—■ Order entered March 4, 1966, granting plaintiff’s motion pursuant to OP'LR 3102 (subd. [e]) to take the oral deposition of defendant Irven Jack Brod for the purpose of preparing a complaint, unanimously reversed, on the law and the facts, without costs or disbursements, and the motion denied, without prejudice to renewal thereof after completion of the below-mentioned examination of books and records. Plaintiff’s present papers make an insufficient showing of the existence of a cause of action to warrant taking the deposition of defendant Brod (see Matter of Fili v. Fili, 27 A D 2d 908, and cases cited). Said defendant, however, by the last paragraph of his affidavit sworn to February 18, 1966, has consented to an examination of various books and records which may conceivably demonstrate a need for his deposition; and he does not oppose a renewal of plaintiff’s motion after the completion of such examination. The procedures for the examination consistent with such consent are to be set forth in the order to be entered hereon. Settle order on notice. Concur—'Botein, P. J., Stevens, McNally, MeGivern and Witmer, JJ.