December 27, 2011 - M&H Wins Affirmance of Order Denying Discovery Request

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Matthew v. City of New York, 90AD3d 1002 (2d Dept., 2011)

In this action to recover damages for personal injuries, the Second Department, in accordance with M&H's assertions, affirmed the lower court's order denying a discovery request by the Appellate Division, Second Judicial Department.

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Matthew v City of New York
2011 NY Slip Op 09602 [90 AD3d 1002]
December 27, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 1, 2012
Phillip Matthew, Appellant,
v
City of New York et al., Defendants, and Consolidated Edison Company of New York, Respondent.

-[*1] Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), for appellant.

Richard W. Babinecz (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered March 2, 2011, which denied his motion pursuant to CPLR 3124 to compel the defendant Consolidated Edison Company of New York to comply with discovery requests or, in the alternative, pursuant to CPLR 3126 to strike that defendant's answer.

Ordered that the order is affirmed, with costs.

A compliance conference order dated January 4, 2010, provided that the plaintiff's failure to file a note of issue on or before July 16, 2010, would result in dismissal of the action pursuant to CPLR 3216. While discovery was still outstanding, on July 16, 2010, the plaintiff filed a conditional note of issue without first obtaining permission from the court pursuant to 22 NYCRR 202.21 (d) (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682, 684 [2009]; cf. Lopez v Retail Prop. Trust, 84 AD3d 891 [2011]). More than 5½ months after filing the conditional note of issue, the plaintiff moved pursuant to CPLR 3124 to compel the respondent to comply with discovery requests or, in the alternative, pursuant to CPLR 3126 to strike the respondent's answer. In support of his motion, the plaintiff failed to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue that would warrant additional pretrial discovery (see 22 NYCRR 202.21 [d]; Wigand v Modlin, 82 AD3d 1213 [2011]; Tirado v Miller, 75 AD3d 153, 161 [2010]; Silverberg v Guzman, 61 AD3d 955 [2009]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2000]). Accordingly, the Supreme Court properly denied the plaintiff's motion. Skelos, J.P., Angiolillo, Belen, Lott and Roman, JJ., concur.