Remark Electric Corp. v. Manshul Construction Corp.

242 A.D.2d 694, 662 N.Y.S.2d 592, 1997 N.Y. App. Div. LEXIS 9177

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1997
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Aetna Casualty and Surety Company appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated February 13, 1996, which denied its motion to vacate the note of issue and to compel the plaintiff to respond to interrogatories.

Ordered that the order is affirmed, with costs.

This action was commenced on February 1, 1994. On August 14, 1994, the plaintiff served and filed a note of issue and Certificate of Readiness. On January 10, 1996, the defendant Aetna Casualty and Surety Company moved to vacate the note of issue and compel the plaintiff to answer certain interrogatories which it asserted had been served on May 3, 1994. The plaintiff denies that it ever received any interrogatories. The Supreme Court denied the motion, and we affirm.

Under the circumstances of this case, the court providently exercised its discretion in denying the appellant’s motion. The appellant is guilty of inexcusable delay by waiting approximately 18 months before moving to vacate the note of issue, and some 20 months before seeking to compel answers to the interrogatories (see, CPLR 3124; Uniform Rules for Trial Cts [22 NYCRR] § 202.21 [e]; Socha Bldrs. v Town of Clifton Park, 99 AD2d 890; Cassidy v Kolonsky, 37 AD2d 880). The appellant had ample time in which to conduct discovery (see, Simmons v Kemble, 150 AD2d 986; Bycomp, Inc. v New York Racing Assn., 116 AD2d 895; cf., Williams v Long Is. Coll. Hosp., 147 AD2d 558). Mangano, P. J., Copertino, Altman and Goldstein, JJ., concur.