Sterne v. Diamond

In this negligence action defendant Tessie Diamond moves to vacate the notice of examination before trial directing the named defendant Robert Diamond to appear as a party to be examined. Plaintiffs cross-move for an order striking out the answer of the defendant or in the alternative for summary judgment.

It is apparent from the papers before the court that the named defendant Robert Diamond was never served with a summons and complaint in the action and there has been no appearance by him. Under the circumstances he cannot be examined as a party and at the best may merely be examined as a…