| Lopez v Retail Prop. Trust |
| 2011 NY Slip Op 04008 [84 AD3d 891] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Welquis Lopez, Appellant, v Retail Property Trust, Defendant, andKone, Inc., Respondent. |
—[*1] Ansa Assuncao, LLP, White Plains, N.Y. (Thomas O. O'Connor of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), enteredSeptember 14, 2010, as denied his cross motion pursuant to CPLR 3124 to compel the defendantKone, Inc., to comply with discovery.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and the plaintiff's cross motion to compel the defendant Kone, Inc., tocomply with discovery is granted.
The Supreme Court, in its discretion, may grant permission to conduct additional discoveryafter the filing of a note of issue and certificate of readiness where the moving party demonstratesthat "unusual or unanticipated circumstances" developed subsequent to the filing requiringadditional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21 [d]; see Wigand v Modlin, 82 AD3d1213 [2011]; Owen v Lester,79 AD3d 992 [2010]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2000]).The compliance conference order dated February 17, 2010, warning the plaintiff that failure tofile a note of issue within 90 days would result in dismissal of the action, did not mandate that alldiscovery be complete prior to the filing of the note of issue. Even though the defendant Kone,Inc. (hereinafter the defendant), was impeding discovery, the plaintiff filed a conditional note ofissue as directed by the compliance conference order. It was not until after the filing of theconditional note of issue that the defendant moved for a protective order with respect to theplaintiff's discovery requests, on the ground that they were untimely. Under these circumstances,the plaintiff's cross motion to compel the defendant to comply with outstanding discovery shouldhave been granted (see Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382 [2003];Schmitt v Carl Meyer's Hof, Inc., 86 AD2d 985 [1982]). Dillon, J.P., Covello, Balkin,Lott and Roman, JJ., concur.