Andresen v. Buffalo Transit Co. 23 A.D.2d 813

Order insofar as it denies defendant’s motion for a protective order unanimously reversed and motion granted and otherwise order affirmed, without costs of this appeal to either party. Memorandum: Plaintiff’s notice to take deposition upon oral examination of defendant’s employee and for production of books and records was served 2% years after plaintiff had filed the first note of issue and certificate of readiness and 5 months after filing a second one. “WRere a plaintiff places a cause upon the calendar by the filing of a note of issue and certificate of readiness without having taken the defendant’s deposition such action constitutes a waiver of plaintiff’s right to take the deposition.” (Price v. Brody, 7 A D 2d 204, 205. See, also, Cerrone v. S’Doia, 11 A D 2d 350.) (Appeal from order of Erie Special Term granting plaintiff’s motion to serve amended complaint, denying defendant’s motion for protective order and to vacate plaintiff’s notice to produce.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Yecchio, JJ.