Colon v. Yen Ru Jin

45 A.D.3d 359, 845 N.Y.S.2d 281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 17, 2006, which denied defendant’s motion to vacate the note of issue, unanimously affirmed, without costs.

Defendant failed to demonstrate any unusual or unanticipated circumstances warranting vacatur of the note of issue more than three months after it was served on him (see 22 NYCRR 202.21 [d], [e]). A lack of diligence in seeking discovery does not constitute such circumstances (Marks v Morrison, 275 AD2d 1027 [2000]). The record discloses that defendant failed to avail himself of several opportunities to conduct plaintiffs deposition and medical examination prior to the deadline set forth in the court’s compliance conference order, thereby waiving any right he had to additional discovery (see Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [2005]). Concur—Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.