| Singh v CBCS Constr. Corp. |
| 2016 NY Slip Op 02345 [137 AD3d 1250] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Baltej Singh, Respondent, v CBCSConstruction Corp. et al., Appellants. (And a Third-PartyAction.) |
Newman Myers Kreines Gross Harris, P.C., New York, NY (Andrew B. Federmanand Olivia M. Gross of counsel), for appellants.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York, NY (Steven C. Falkoff ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County(Hart, J.), entered September 11, 2015, as denied those branches of the motion of thedefendant CBCS Construction Corp. which were to vacate the note of issue and toextend its time to move for summary judgment.
Ordered that the appeal by the defendant Pass Properties BK, LLC, is dismissed, as itis not aggrieved by the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144, 156-157 [2010]); and it is further,
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof denying that branch of the motion of the defendant CBCSConstruction Corp. which was to vacate the note of issue, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofaras appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant CBCS ConstructionCorp.
The defendant CBCS Construction Corp. (hereinafter the defendant) moved, interalia, to vacate the note of issue within the time prescribed for doing so pursuant to 22NYCRR 202.21 (e). The defendant demonstrated that discovery was not complete in thatthe depositions of the parties and nonparty witnesses and physical examinations of theplaintiff had not occurred, properly executed medical authorizations had not beenprovided, there were outstanding requests for discovery, and the case was not ready fortrial. Under these circumstances, the Supreme Court improvidently exercised itsdiscretion in denying that branch of the defendant's motion which was to vacate the noteof issue (see Breytman vOlinville Realty, LLC, 110 AD3d 753, 754 [2013]; Kent Realty, LLC v Danica Group,LLC, 102 AD3d 927 [2013]; Jacobs v Johnston, 97 AD3d 538 [2012]; Costanza v Skyline Towers 5,8 AD3d 524, 525 [2004]).
[*2] Inlight of our determination, we need not address the defendant's remaining contention.Leventhal, J.P., Miller, Maltese and Duffy, JJ., concur.