Dimicelli v. Marcellette

Defendants move to examine before trial a person who is not a party to this action. The motion may be granted if the court “ determines that there are adequate special circumstances.” (CPLR 3101 subd. [a], par. [4].)

The plaintiff, a passenger in an automobile owned and driven by her husband, was injured when the husband’s automobile collided with the defendants’ automobile. The person whose examination is sought is the husband of the plaintiff. Plaintiff’s attorney, in opposition to the motion, cites Risi v. Ackerley (24 Misc 2d 78) which holds that the above facts do not constitute “…