Mary Andresen, as Administratrix of the Estate of Richard O. Andresen, Deceased, Respondent, v. Buffalo Transit Co., Inc., Appellant

Mary Andresen, as Administratrix of the Estate of Richard O. Andresen, Deceased, Respondent, v. Buffalo Transit Co., Inc., Appellant. [MAJORITY] 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.