| Kent Realty, LLC v Danica Group, LLC |
| 2013 NY Slip Op 00460 [102 AD3d 927] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Kent Realty, LLC, Respondent, v Danica Group,LLC, Appellant. (Action No. 1.) Danica Group, LLC, Appellant, v Kent Realty, LLC,Respondent. (Action No. 2.) |
—[*1] Stahl & Zelmanovitz, New York, N.Y. (Joseph Zelmanovitz of counsel), forrespondent.
In two related actions, inter alia, to recover damages for use and occupancy of realproperty, which were joined for trial, Danica Group, LLC, the defendant in action No. 1and the plaintiff in action No. 2, appeals from an order of the Supreme Court, KingsCounty (Solomon, J.), dated March 22, 2012, which denied its motion to vacate the noteof issue in each action and to compel the deposition of a nonparty witness.
Ordered that the order is reversed, on the law, with costs, and the motion of DanicaGroup, LLC, to vacate the note of issue in each action and to compel the deposition of anonparty witness is granted.
The Supreme Court should have granted the motion of Danica Group, LLC(hereinafter Danica), to vacate the note of issue in each action and to compel thedeposition of a nonparty witness. Danica moved to vacate the notes of issue within thetime prescribed for doing so pursuant to 22 NYCRR 202.21 (e), and demonstrated thatdiscovery was not complete in that the deposition of a nonparty witness had not takenplace and the actions were not ready for trial (see Jacobs v Johnston, 97 AD3d 538 [2012]; Gallo v SCG Select Carrier Group,L.P., 91 AD3d 714 [2012]). Contrary to the contention of Kent Realty, LLC, thesubpoena served by Danica upon the nonparty witness was not untimely or unauthorized(see Jacobs v Johnston, 97 AD3d at 538). Rivera, J.P., Dickerson, Leventhal andLott, JJ., concur.