Giddens v. Moultrie

66 A.D.2d 993, 411 N.Y.S.2d 774, 1978 N.Y. App. Div. LEXIS 14353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1978
• Status: Published

Opinions

Order reversed, without costs, and motion denied. Memorandum: In this automobile negligence action, plaintiff filed a note of issue and statement of readiness on February 8, 1978. After plaintiff had submitted to an oral examination, the timely motion of defendants Moultrie and Randolph to vacate the note of issue and statement of readiness was withdrawn on March 15, 1978 with plaintiff’s knowledge and approval. Immediately thereafter plaintiff moved for an order compelling the attendance of Moultrie and Randolph at an examination before trial. Special Term granted the motion and at the same time, without prejudice, struck the note of issue and statement of readiness. We again state, as we have so often in the past, that a party must move within 20 days to vacate a statement of readiness or he is foreclosed from pretrial discovery (Uniform Calendar and Practice Rules for the Fourth Department, 22 NYCRR 1024.4; Doll v Kleinklaus, 66 AD2d 1003; Schuster v Constantine, 56 AD2d 737; Marchítela v Greco Sales & Serv., 52 AD2d 746). To effectuate the purposes of the statement of readiness rule, it must be strictly enforced (Cerrone v S’Doia, 11 AD2d 350, 352). The court may exercise its discretion to vary the rule only upon a showing of "special, unusual or extraordinary circumstances, spelled out factually” (Doll v Kleinklaus, supra, p 1003; Schuster v Constantine, supra; Finn v Crystal Beach Tr. Co., 55 AD2d 1001; Riggle v Buffalo Gen. Hosp., 52 AD2d 751; Burnett Process v Richlar Ind., 47 AD2d 994; Fuoco v Boyle Bros., 40 AD2d 943; see, also, Price v Brody, 7 AD2d 204, ). Plaintiff has failed to demonstrate the existence of such circumstances. Her reliance upon a claimed agreement between the parties that her right to pretrial discovery would survive the filing of the statement of readiness is without merit. Such an agreement, even where demonstrated, may not be employed to circumvent the rule (Doll v Kleinklaus, supra; Burnett Process v Richlar Inds., supra; Fuoco v Boyle Bros., supra). All concur, except Hancock, Jr., and Witmer, JJ., who dissent and vote to affirm the order, in the following memorandum.