Gallo v. SCG Select Carrier Group, L.P.

91 A.D.3d 714, 936 N.Y.2d 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2012
• Status: Published

Opinion

The appellants timely moved, inter alia, to strike the note of issue within 20 days of its service (see 22 NYCRR 202.21 [e]), and clearly demonstrated that the plaintiffs certificate of readiness contained misstatements concerning the status of discovery. Since the appellants made a clear showing that discovery was not complete and that the case was not ready for trial, the Supreme Court should have granted their motion to strike the note of issue and to compel the plaintiff to appear for a neurological examination (see 22 NYCRR 202.21 [e]; Brown v Astoria Fed. Sav., 51 AD3d 961, 962 [2008]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002]; Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254 [2001]; Spilky v TRW, Inc., 225 AD2d 539, 540 [1996]). Angiolillo, J.E, Florio, Leventhal and Lott, JJ., concur.