Bandike Associates, Inc. v. B. B. M. Realty Corp.

55 A.D.2d 999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1976
• Status: Published

Opinion

Appeals from orders of the Supreme Court at Special Term, entered July 2, 1976 and July 26, 1976 in Sullivan County, which (1) denied defendant’s motion to strike the within action from the Ready Calendar; to direct the service of an amended complaint; and to permit discovery, and (2) granted plaintiff’s motion for a protective order. When this matter was previously before this court, we modified the judgment appealed from and directed a new trial limited solely to the issue of damages (Bandike Assoc, v B. B. M. Realty Corp., 44 AD2d 622). The action was thereafter placed on the Ready Calendar in Sullivan County by the clerk of the court thereby prompting the instant motion by defendant to strike the same and for related relief. Special Term properly denied defendant’s motion. No new note of issue need be filed under these circumstances and we fail to perceive any reason to compel plaintiff to serve an amended complaint. The nature and amount of damages will likely be influenced by the testimony of expert witnesses for the respective parties and this court has heretofore established a standard for the measurement- of such damages (Bandike Assoc, v B. B. M. Realty Corp., supra). Accordingly, discovery is unnecessary and the protective order was also properly granted. Orders affirmed, without costs. Koreman, P. J., Sweeney, Kane, Mahoney and Main, JJ., concur.