Lande v. Dailey

88 A.D.2d 558, 450 N.Y.S.2d 491, 1982 N.Y. App. Div. LEXIS 16711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1982
• Status: Published

Opinion

— Order, Supreme Court, New York County (Lehner, J.), entered November 19,1981, reversed, on the law, on the facts and in the exercise of discretion, and defendant and counterclaim plaintiff-appellant Dailey’s motion to strike the case from the calendar and to compel further discovery granted, the same to be scheduled as hereinafter set forth, without costs. Plaintiff sublet his apartment in New York to defendant sublessee for a two-year term. He complains that it was damaged by his subtenant during the period of the latter’s tenancy. The counterclaim cites alleged violations of rent laws, as well as fraudulent misrepresentation. The third-party action is by the subtenant against the agent who negotiated the subtenancy, charging him with fraudulent negotiation of the sublease. Against this background, there have been previous difficulties about examination of plaintiff, with overtones of unpleasant controversy and hints of professional discourtesy, culminating in plaintiff’s serving and filing a note of issue and a statement of readiness, claiming that procrastination by defendant has constituted a waiver of further discovery. In order to get the parties back on the track and bring about judicial resolution of the controversy, we direct that renewed discovery shall commence on a date specified in the notice thereof, to be within 10 days following service of the order entered hereon, and to be completed, with the co-operation of the parties, within 45 days following the service of that order. Concur — Ross, J. P., Markewich, Silverman, Bloom and Asch, JJ.