Pua v. Lam

2017 NY Slip Op 8098, 155 A.D.3d 487, 63 N.Y.S.3d 859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 2017
• Docket: 4985N 154527/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about September 28, 2016, which denied defendant C&H Herb Shop, Inc.’s motion to, among other things, vacate the note of issue and extend its time to make summary judgment motions to 120 days following the completion of discovery, unanimously reversed, on the law, on the facts, and in the exercise of discretion, and the motion granted, with costs.

When, as in this case, statements in a certificate of readiness concerning completion of discovery are incorrect or blatantly false, a motion to strike the note of issue should be granted (see e.g. Cromer v Yellen, 268 AD2d 381 [1st Dept 2000]). Plaintiff’s contention that the motion has been mooted by the completion of most discovery is based on representations concerning subsequent matters, not in the appellate record, and of which judicial notice cannot be taken (see Walker v City of New York, 46 AD3d 278 [1st Dept 2007]). In any event, plaintiff acknowledges that discovery remains outstanding.

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur—Renwick, J.P., Manzanet-Daniels, Andrias, Kern and Oing, JJ.