| Suarez v Shapiro Family Realty Assoc., LLC |
| 2017 NY Slip Op 02914 [149 AD3d 526] |
| April 13, 2017 |
| Appellate Division, First Department |
[*1]
| Dolores S. Suarez, Respondent, v Shapiro FamilyRealty Associates, LLC, et al., Appellants, and Duane Reade, Inc., Respondent. Shapiro FamilyRealty Associates, LLC, et al., Third-Party Plaintiffs-Appellants, v Sato Construction Co., Inc.,Doing Business as Flag Waterproofing & Restoration Company, et al., Third-PartyDefendants. |
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.
The Rosato Law Firm, P.C., New York (Paul A. Marber of counsel), for Dolores S. Suarez,respondent.
Gruvman, Giordano & Glaws, LLP, New York (Charles T. Glaws of counsel), forDuane Reade, Inc., respondent.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 30, 2016,which denied the motion of defendants Shapiro Family Realty Associates, LLC, Kern 90, LLCand Rose Associates, Inc. to strike plaintiff's note of issue, to compel defendant Duane Reade,Inc. to comply with discovery, and to compel third-party defendants, Sato Construction Co., Inc.and Production Contracting Co., to produce witnesses for depositions, unanimously modified, onthe law and the facts, and Shapiro's motion granted to the extent that Duane Reade is directed toprovide a copy of contracts relative to sidewalk repairs performed on the sidewalk abutting itsleased premises forthwith, to produce John Yodice and Tim Weiss for depositions within 60 daysof the date of this order, and to provide the last known address of Mark Bander, and otherwiseaffirmed, without costs.
Under the circumstances, where plaintiff's certificate of readiness contained no incorrectmaterial representations, the court properly refused to vacate the note of issue (cf. 22NYCRR 202.21 [e]). However, as plaintiff acknowledged in the note of issue and certificate ofreadiness, discovery was still outstanding. Plaintiff's argument that Shapiro's affirmation of goodfaith failed to comply with 22 NYCRR 202.7 is unavailing, since the record demonstrates thatShapiro repeatedly attempted to obtain discovery and depositions from Duane Reade, but to noavail. "Under the unique circumstances of this case," any further attempt to resolve the disputenon-judicially would have been futile (see Carrasquillo v Netsloh Realty Corp., 279AD2d 334, 334 [1st Dept 2001]).
It is noted that granting Shapiro's discovery request as to Duane Reade will not prejudiceplaintiff, since the matter remains on the trial calendar (see May v American Red Cross,282 AD2d 285 [1st Dept 2001]). Concur—Acosta, J.P., Renwick, Manzanet-Daniels,Kapnick and Webber, JJ.