M & J Trimming, Inc. v. Kew Management Corp.

254 A.D.2d 21, 677 N.Y.S.2d 789, 1998 N.Y. App. Div. LEXIS 9943

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered January 9, 1998, which directed plaintiffs to file a note of issue so as to place the action on the trial calendar, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the note of issue vacated and the action stricken from the trial calendar to permit defendant to conduct discovery. Appeal from order, same court and Justice, entered December 15, 1997, dechning to sign those branches of defendant’s order to show cause (the OSC) seeking to vacate the note of issue and to conduct discovery and denying that branch of the OSC seeking to reargue the order appealed, unanimously dismissed, without costs, as taken from a nonappealable paper.

The order directing plaintiffs to file the note of issue unfairly deprived defendant of its right to discovery (Lipson v Dime Sav. Bank, 203 AD2d 161, 162-163), especially where the record shows that if anyone, it was plaintiffs, not defendant, who engaged in dilatory conduct, and it was plaintiffs who had the burden to prosecute the action here (see, CPLR 3216 [a]). Neither the court’s order declining to sign the OSC nor the court’s denial of the portion of the OSC seeking reargument, is appealable (CPLR 5701 [a] [2]; Matter of Spedicato v New York State Div. of Hous. & Community Renewal, 241 AD2d 343; Kellert v Mail Boxes, Etc. USA, 248 AD2d 127). Concur — Sullivan, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.