In this assault action, Special Term has granted defendant’s motion to vacate plaintiff’s notice of examination before trial, upon the ground that examinations in such cases are not favored in this Department in the absence of a showing of special circumstances. There is no claim made of such special or unusual circumstances as would warrant the granting of the examination if it were not obtainable otherwise. Neither rule 121-a of the Rules of Civil Practice, as recently amended, nor Trial Term Rule XI of the New York County Supreme Court Rules purport to change the scope of or the right to examination before trial of adverse parties. What we said in Miller v. Shopwell Foods (2 A D 2d 362, 364) in relation to examination in malicious prosecution actions, is just as applicable here: “ The real question therefore is whether an action for malicious prosecution comes within the class of ‘ other actions where examinations are not favored on the ground of public policy ’. We can find no basis for so holding; in other words there would appear to be nothing in our public policy, as defined in either decision or statute, which would bar such an examination. ’’
The Appellate Division, Second Department, has approved an examination before trial in an assault action (Hackett v. Reed, 207 Misc. 311, affd. 285 App. Div. 905); and we see no reason why this court should establish a different rule for this Department (cf. Siciliano v. Consolidated Edison Co., 204 Misc. 203).
Accordingly, the order appealed from should be unanimously reversed in the exercise of discretion, without costs, the motion to vacate the notice of examination before trial should be denied, and the examination will proceed as to the relevant and material allegations of fact put in issue by the pleadings. Settle order.
Botein, P. J., Breitel, Rabin, M. M. Frank and Bastow, JJ., concur.
Order unanimously reversed in the exercise of discretion, without costs, the motion to vacate the notice of examination before trial is denied, and the examination will proceed as to the relevant and material allegations of fact put in issue by the pleadings. Settle order.