Marchitelli v. Greco Sales & Service, Inc.

52 A.D.2d 746, 382 N.Y.S.2d 197, 1976 N.Y. App. Div. LEXIS 12446

Opinion

Order unanimously reversed, with costs, and defendant’s motion denied. Memorandum: On September 18 and 19, 1973, plaintiffs filed and served notes of issue and statements of readiness in this personal injury action. Defendant did not move to vacate these state ments within 20 days. Thereafter, on October 31, 1973, defendant served a demand for discovery and inspection and on April 10, 1974 he served a demand for a bill of particulars. When plaintiffs failed to respond to these demands, defendant sought and obtained 30-day conditional preclusion orders as well as an order directing plaintiffs to comply with the discovery requests. A party who seeks pretrial discovery subsequent to the filing and serving of a statement of readiness must move to vacate that statement within 20 days of its filing or that party waives its right to such discovery (Uniform Calendar and Practice Rules for the Fourth Department, 22 NYCRR 1024.4; Fuoco v Boyle Bros, 40 AD2d 943). Departure from this rule is justified only when the party factually spells out special, unusual or extraordinary circumstances warranting an exercise of the court’s discretion. Here, however, defendant failed to set forth such circumstances and, thus, Special Term improperly permitted the late discovery. (Appeal from order of Erie Special Term—motion to preclude.) Present—Marsh, P. J., Moule, Cardamone, Goldman and Witmer, JJ.