Bentley v. Solomon Equities, Inc.

188 A.D.2d 418

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered June 11, 1992, which denied the motion by defendant D & F Masons, Inc. ("Masons”) to vacate plaintiff’s note of issue and to strike the action from the trial calendar, unanimously reversed, to the extent appealed from, on the law and the facts and in the exercise of discretion, and the motion granted, without costs.

Plaintiff’s note of issue and statement of readiness in this construction accident case were served at a time when Masons had yet to be joined as a party defendant in the main action brought by plaintiff and, consequently, had not yet served its answer therein. Clearly, Masons had no reasonable opportunity to complete discovery vis-á-vis plaintiff. Under the circumstances, it was an improvident exercise of discretion for the IAS Court to retain the action on the trial calendar, even giving appropriate weight to Masons’ failure to move within the ordinarily applicable 20-day period and its delay thereafter (Hyman & Gilbert v Greenstein, 138 AD2d 678; Conford Co. v Fordham Concourse Realty Assocs., 119 AD2d 526). Concur— Carro, J. P., Rosenberger, Wallach and Ross, JJ.