Huttner v. Mayberry

96 A.D.2d 527, 465 N.Y.S.2d 41, 1983 N.Y. App. Div. LEXIS 19047

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1983
• Status: Published

Opinion

— Appeal by defendants from (1) an order of the Supreme Court, Orange County (Gurahian, J.), dated June 3,,1982, which denied their motion to, inter alia, strike plaintiff’s note of issue and stay arbitration and (2) an order of the same court (Isseks, J.), dated September 6,1982, which denied their motion to compel plaintiff to appear for an examination before trial. Orders affirmed, without costs or disbursements. Having failed to move to strike the case from the calendar within the 20-day period following the plaintiff’s filing of a note of issue and statement of readiness, the defendants waived their right to conduct an examination before trial of the plaintiff (22 NYCRR 675.3; Price v Brody, 7 AD2d 204; Bowen v Fiore, 42 AD2d 960; Fuoco v Boyle Bros., 40 AD2d 943). It is only where there are present “special, unusual or extraordinary circumstances, spelled out factually”, that a court has discretion to depart from this rule (Price v Brody, supra, p 206). In our view, no such “special, unusual or extraordinary circumstances” have been demonstrated by defendants. Moreover, under the circumstances of this case, Special Term correctly denied that branch of defendants’ motion which sought to stay arbitration. Accordingly, the orders appealed from must be affirmed. Lazer, J. P., Mangano, Gulotta and Niehoff, JJ., concur.