Cassidy v. Kolonsky

37 A.D.2d 880, 325 N.Y.S.2d 145, 1971 N.Y. App. Div. LEXIS 3258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1971
• Status: Published

Opinion

Appeal from an amended order of the Supreme Court, entered in Saratoga County, granting respondents’ motion to compel an examination before trial. Appellant objects to the examination before trial here involved on the ground that the note of issue had been filed almost two years previous and the case was on the Day Calendar in September, 1970, at which time it was marked ready by all parties, and we believe correctly so. The statement of readiness rule (22 NYCRR 861.10) must be strictly enforced, and absent a showing of unusual and extraordinary circumstances, disclosure devices cannot be permitted to be utilized after such statement has been filed (Wahrhaftig v. Space Design Group, 33 A D 2d 953; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3402.12). In the instant ease, no such unusual or extraordinary circumstances have been established (cf., D’Angelo v. Goddard, 29 A D 2d 333) and it is immaterial that the examination of appellant was incomplete at the time of filing (Barnett v. Ferguson, 29 A D 2d 525). Moreover, the motion should have been denied due to inexcusable laches (Mallin v. Kossin, 25 A D 2d 509). Order reversed, on the law and the facts, and motion denied, with costs. Reynolds, J. P., Aulisi, Staley, Jr., Cooke and Simons, JJ., concur.