Fowler v. Manahan 100 A.D.2d 860

In an action to recover damages for assault and battery, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Rubin, J.), entered January 21, 1983, which denied a motion to renew a prior application to take the deposition of two eyewitnesses. H Order affirmed, with costs. K The denial of plaintiffs’ application to depose two eyewitnesses to the incidents involved in this action, was not an abuse of discretion under the facts of this case. Obviously, the two witnesses sought to be deposed are close friends of the infant plaintiff. The lack of personal appearance by these two eyewitnesses, whose testimony would be crucial, would deprive the trier of the facts of an opportunity to observe such witnesses’ demeanor and their method of answering and, thus, to form a well-grounded opinion as to the weight to accord their testimony (Winter v State of New York, 65 Mise 2d 587, 588). K It is noted that plaintiffs’ prior application to examine these same two witnesses based upon *861exigent circumstances was denied, which denial was affirmed by this court (Fowler v Manahan, 89 AD2d 827). Thompson, J. P., Weinstein, Rubin and Lawrence, JJ., concur.