Pannone v. Silberstein

40 A.D.3d 327, 837 N.Y.S.2d 9

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Karen Smith, J.), entered October 13, 2006, which, to the extent appealed from, denied defendant Silberstein’s motion to strike plaintiffs note of issue and certificate of readiness and denied his request for further discovery, unanimously affirmed, without costs.

The court properly exercised its discretion in denying defendant’s motion to strike plaintiffs note of issue. There was no outstanding discovery when plaintiff filed the note of issue and the certificate of readiness contains no factual errors. The certificate of readiness accurately stated that the physical examination was waived since the court’s March 23, 2006 order provided for automatic waiver of the right to conduct a physical examination, and defendant failed to comply with the schedule set forth in the order (see Quintanna v Rogers, 306 AD2d 167 [2003]). Defendant’s request for further discovery was properly denied since he failed to demonstrate any “special, unusual or extraordinary circumstances” (Grant v Wainer, 179 AD2d 364, 365 [1992] [internal quotation marks and citation omitted]). Defendant was afforded adequate discovery to address plaintiff’s claims. Concur—Mazzarelli, J.P., Andrias, Saxe, Sweeny and Malone, JJ.