
    Irving Abelow et al., Appellants, v Harold Grossman et al., Respondents.
   Order, Supreme Court, New York County, entered on June 17, 1977, granting, in part, plaintiffs’ motion to compel defendants to appear for pretrial examination and for related relief, unanimously modified, on the law, on the facts and in the exercise of discretion, to the extent of granting plaintiffs’ request for permission, at their option, to use a tape recorder to record the testimony which would be given at the examination directed to be held at Special Term, Part II, at 60 Centre Street, within 20 days after service of a copy of the order entered hereon with notice of entry. As so modified, the order appealed from is affirmed, without costs and without disbursements. Defendants object to the general concept of using a tape recorder but not to the utilization of any specific mechanical device by plaintiffs. While CPLR 3113 (subd [b]) is silent on the subject of using mechanical means for the taking of pretrial testimony, this Department has permitted litigants to use electronic tape recorders over the objection of the party being examined (3A Weinstein-Korn-Miller, NY Civ Prac, par 3113.07, p 31-307; Bichler v Lilly & Co., 50 AD2d 90, 91-92; Gotthelf v Hillcrest Lbr. Co., 280 App Div 668). The last-cited case states (p 669) as follows: "If any solid objection is made to any particular machine on any particular occasion, it can be passed upon by the court at Special Term.” No such "solid objection” having been made by defendants, Special Term erred in placing upon plaintiffs the burden of demonstrating that the recording device they propose to use is adequate and of satisfactory fidelity. As suggested in Gotthelf v Hillcrest Lbr. Co. (supra), the examinations should be held at Special Term so that if there be a "solid objection”, it can be passed upon by the court. This is especially appropriate in the case at bar where the litigants and their attorneys have demonstrated a clear propensity to delay. Concur—Lupiano, J. P., Evans, Capozzoli and Markewich, JJ.  