Ortiz v. Valdescastilla

98 A.D.2d 610, 469 N.Y.S.2d 347, 1983 N.Y. App. Div. LEXIS 20893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1983
• Status: Published

Opinion

Order, Supreme Court, New York County (A. F. Klein, J.), entered April 12, 1983, denying defendants’ motion to strike the action from the calendar, is unanimously reversed, on the law and the facts, and in the exercise of discretion, with costs, and the motion to strike the action from the calendar is granted, without prejudice to the service and filing of a new statement of readiness and note of issue, if and when warranted. Rule 660.4 (d) (4) (ii) and (iii) of the Rules of the Supreme Court, New York and Bronx Counties (22 NYCRR), provides that the court may strike an action from the calendar on the grounds “(ii) that all preliminary proceedings have not been completed; (iii) that a material fact set forth in the statement of readiness is incorrect”. On September 13, 1982 defendants served a notice to take plaintiff’s deposition on October 21, 1982. On October 20, 1982 plaintiff moved for summary judgment; this automatically stayed the deposition (CPLR 3214, subd [b]). On January 31,1983 plaintiff filed a statement of readiness and note of issue. At that date the motion for summary judgment had not yet been decided, nor the noticed deposition held, yet plaintiff’s statement of readiness said “[tjhere are no outstanding requests for discovery.” In the circumstances, the statement was false. No excuse has been proffered for the making of that false statement. This is not to say that a party may be prevented from putting a case on the calendar by his adversary’s serving late or otherwise improper notices for pretrial proceedings, etc. But the statement of readiness must state the true facts. The defect is not cured by the fact that the order appealed from directed that defendants shall depose plaintiff on May 11,1983. Rule 660.4 (d) (6) of the Rules of the Supreme Court, New York and Bronx Counties, only permits the granting of permission to file a statement of readiness with leave to conduct an examination at a future date where a party is prevented from filing a statement of readiness because of the fault of the adverse party, or any other reason beyond the control of the party so prevented. No such showing has been made. Concur — Silverman, J. P., Lynch, Milonas and Kassal, JJ.