Finn v. Crystal Beach Transit Co.

55 A.D.2d 1001, 391 N.Y.S.2d 925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1977
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: It has been repeatedly held that only where there are present "special unusual or extraordinary circumstances spelled out factually” has Special Term discretion to depart from the rule which forecloses discovery proceedings after the statement of readiness has been filed (Fuoco v Boyle Bros., 40 AD2d 943; Warren v Vick Chem. Co., 37 AD2d 913; Price v Brody, 7 AD2d 204). The record here certified to by the parties contains no such factual showing of the requisite circumstances; nor, on appellate review may consideration be given to the proffered postappeal affidavit of counsel to supplement a deficient record (Saraceno v Piscopo, 16 AD2d 735; see, also, Matter of Niagara County Water Dist. v Board of Assessors of City of Lockport, 31 AD2d 1004, 1005; Smith v Slimak, 215 App Div 637, 639; Giardina v Bonnano, 184 NYS 478). Absent facts evidencing special or extraordinary circumstances, Special Term improperly granted an order which allowed discovery. (Appeal from order of Erie Supreme Court— examination before trial.) Present — Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ.