Burnett Process, Inc. v. Richlar Industries, Inc.

47 A.D.2d 994, 366 N.Y.S.2d 704, 1975 N.Y. App. Div. LEXIS 9485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1975
• Status: Published

Opinion

Order unanimously reversed, with costs, and motion for protective order granted. Memorandum: Plaintiffs’ application for discovery was made after they had filed a note of issue with a statement of readiness and after an order preferring the action for trial had been entered. By filing the note of issue with statement of readiness alleging that all pretrial proceedings have been completed, plaintiffs waived their rights to further discovery and the order should not have been granted (22 NYCRR 1024.4; Fuoco v Boyle Bros., 40 AD2d 943; Belski v New York Cent. R.R. Co.. 38 AD2d 882; Warren v Vick Chem. Co., 37 AD2d 913; Andresen v Buffalo Tr. Co., 23 AD2d 813; Cerrone v S’Doia, 11 AD2d 350). "Only where there are present 'special, unusual or extraordinary circumstances, spelled out factually’ has Special Term discretion to. depart from this rule.” (Fuoco v Boyle Bros., supra, 943.) Such special circumstances do not exist here because another Judge granted a preference and then delayed trial by making the preference conditional on further pretrial proceedings by defendants. Plaintiffs’ remedy was to proceed against that order, not seek further relief for themselves. The parties’ tacit consent to ignore the statement of readiness may not circumvent the court rule (Morrison v Sam Snead Schools of Golf of NY 13 AD2d 986). (Appeal from part of order of Onondaga Special Term in action for breach of fiduciary duty.) Present— Marsh, P. J., Simons, Mahoney, Goldman and Witmer, JJ.