
    Albert Battaglia, Plaintiff, v. Daniel Dorfman, Defendant.
    Supreme Court, Special Term, Queens County,
    February 3, 1960.
    
      Milton Gurwitz for plaintiff.
    
      Harold M. Brown for defendant.
   Harold J. Crawford, J.

Motion by plaintiff for an order vacating defendant’s notice of examination and defendant’s demand for a bill of particulars on the ground that the case is now on the calendar.

The action is for false arrest and malicious prosecution. Issue was joined on or about January 11, 1959. On December 24, 1959 plaintiff’s attorney served a note of issue, together with a statement of readiness, noticing the action for the February 1960 Term. The note of issue was filed about December 30,1959.

On December 28, 1959 (the first business day after Dec. 24, 1959) defendant served a notice to examine the plaintiff on January 11, 1960, and on December 30, or 31, 1959, defendant demanded a bill of particulars to be served on or about January 12, 1960.

Plaintiff contends that both of these preliminary proceeding’s should be vacated because the action is on the calendar. Defendant contends that since the case was noticed for the February Term and both of these preliminaries would have been concluded before the first day of that term if plaintiff had complied with the demands, he is entitled to conduct these preliminary proceeding’s.

The statement of readiness required by the rule provides that it shall set forth that all preliminary proceedings have been completed or that there has been a reasonable opportunity to complete them. Technically, it would seem that they should have been completed, not that they will have been completed by the time the case is put on the calendar.

On the other hand, defendant points out that in the criminal action out of which this civil suit arose, the defendant here was examined on the witness stand as the complaining witness, but the plaintiff here, as defendant in that action, did not take the stand. Thus, defendant has had no examination of the plaintiff although the plaintiff has had an examination of the defendant. Moreover, defendant states that in other litigation between the parties, defendant has been required to appear for examination on eight different occasions between January 19,1959 and June 11, 1959, and that defendant’s attorney has been kept so busy he has been unable to devote any time to the preparation of this action.

Under the circumstances of this case, plaintiff’s motion to vacate the notice of examination and the demand for a bill is denied. (McGuire v. Pick, 8 A D 2d 800.) Submit order.  