Encarnacion v. Monier

81 A.D.3d 875, 917 N.Y.S.2d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2011
• Docket: Appeal No. 1
• Status: Published

Opinion

In two related actions, inter alia, to recover damages for personal injuries, which were joined for trial, the defendant in action No. 2 appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated July 14, 2009, as, in effect, granted that branch of his motion which was to vacate the note of issue filed in action No. 2 only to the extent of directing the plaintiff to provide all outstanding discovery by a date certain.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in declining to vacate the note of issue, since it directed the plaintiff to produce all outstanding discovery by a date certain (see Rampersant v Nationwide Mut. Fire Ins. Co., 71 AD3d 972, 973 [2010]; Joseph v Propst, 306 AD2d 246 [2003]; see also Ronel-Bennett, Inc. v Consolidated Edison Co. of N.Y., 149 AD2d 678, 678-679 [1989]).

The parties’ remaining contentions either refer to matter dehors the record or are not properly before this Court. Covello, J.P., Chambers, Lott and Cohen, JJ., concur.