Jenkins v. Riverbay Corp.

2020 NY Slip Op 05814, 130 N.Y.S.3d 668, 187 A.D.3d 543

Opinion

Jenkins v Riverbay Corp. (2020 NY Slip Op 05814)

Jenkins v Riverbay Corp.

2020 NY Slip Op 05814

Decided on October 15, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 15, 2020
Before: Manzanet-Daniels, J.P., Mazzarelli, Moulton, Kennedy, JJ.

Index No. 21753/18 Appeal No. 12255N Case No. 2020-02669

[*1]Russell Jenkins, Plaintiff-Respondent,

v

Riverbay Corporation, Defendant-Appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Patrick J. Lawless of counsel), for appellant.

Burns & Harris, New York (Jason Steinberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered March 18, 2020, which denied defendant's motion to compel plaintiff to provide certain medical record authorizations for trial purposes, unanimously affirmed, without costs.

Defendant made no showing that unusual or unanticipated circumstances had developed after the note of issue was filed which required additional pretrial proceedings so as to avoid substantial prejudice (see 22 NYCRR § 202.21[d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2d Dept 2000]). Rather, the record is clear that "[a]ny outstanding discovery is due to defendant['s] own inaction" (Allen v Hiraldo, 144 AD3d 434, 435 [1st Dept 2016]). Accordingly, defendant's motion was properly denied.

Insofar as plaintiff has been granted a trial preference based on his advanced age (CPLR 3403[a][4]), the matter should proceed to trial without undue delay.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 15, 2020