Consolidated appeals from two orders of the Supreme Court, Queens County, one dated January 27, 1969, which denied a motion by defendant Soltysik to take the deposition of Philip J. Paretti as a witness pursuant to CPLR 3101 (subd. [a], par. [4]), and the second dated May 28, 1969, which granted a motion by the third-party defendant (said Paretti) to dismiss the third-party complaint (the third-party complaint was interposed after the order of January 27, 1969 was made). Order dated May 28, 1969 affirmed, without costs. No opinion. Order dated January 27, 1969 reversed, without costs, and defendant Soltysik's said motion granted. The examination of Philip J. Paretti, as a witness, shall proceed on 10 days' written notice, to be given by said defendant to Philip J. Paretti and to the attorneys for all parties who have appeared in this action, and said attorneys shall have the right to cross-examine said witness on said examination. In our view, the Special Term improvidently exercised its discretion in denying the motion to examine Philip J. Paretti as a witness. Paretti was the sole eyewitness to the accident, he is related by marriage to plaintiff and defendant Rachel Rinaldi, and he refused to furnish any statement to defendant Soltysik's attorney unless his attorney were present. We find special circumstances exist justifying and requiring Paretti's examination (cf. Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 407; Heidell v. Murray Co., 255 App. Div. 792; Malagoli v. Bernstein, 1 A.D.2d 1042; see, also, Practice Commentary in McKinney's Cons. Laws of N.Y., Book 7b, CPLR 3101 — 3200, pp. 25-27).
Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.