Welch v. County of Clinton

203 A.D.2d 749, 610 N.Y.S.2d 674, 1994 N.Y. App. Div. LEXIS 4164

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1994
• Status: Published

Opinion

Casey, J.

Appeal from an order of the Supreme Court (Ryan, Jr., J.), entered October 28, 1992 in Clinton County, which granted defendant’s motion for further disclosure.

On this appeal, plaintiff argues that defendant was not entitled to further discovery after the filing of the note of issue and certificate of readiness. 22 NYCRR 202.21 (d) authorizes the court to grant permission to conduct necessary proceedings "[wjhere unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice”. Defendant failed to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and statement of readiness. That defendant has new counsel who wish to prepare the case in a different manner than prior counsel does not demonstrate unusual or unanticipated circumstances (see, Ward v City of Rensselaer, 106 AD2d 719, 721). At best, defendant has alleged that discovery is incomplete, which is insufficient to warrant further discovery after the filing of the note of issue and statement of readiness (see, S.A.B. Enters. v Village of Athens, 178 AD2d 820, 821). Defendant had ample opportunity to pursue discovery during the nearly eight years that elapsed after issue was joined and before the note of issue was filed, and another year passed after the filing of the note of issue before defendant sought further discovery. Supreme Court’s order should be reversed and defendant’s motion denied.

Cardona, P. J., Mikoll, Crew III and Weiss, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.