Conford Co. v. Fordham Concourse Realty Associates

• Decision Date: 22 April 1986
• Parties: CONFORD COMPANY, Plaintiff-Appellant, v. FORDHAM CONCOURSE REALTY ASSOCIATES, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 43

501 N.Y.S.2d 43

119 A.D.2d 526

CONFORD COMPANY, Plaintiff-Appellant, v. FORDHAM CONCOURSE REALTY ASSOCIATES, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 22, 1986.

H.K. Flamenbaum, New York City, for plaintiff-appellant.

R.M. Trien, New York City, for defendant-respondent.

Before SANDLER, J.P., and ROSS, MILONAS, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Amos E. Bowman, J.), entered on October 15, 1985, which denied plaintiff's motion for a preliminary injunction, is affirmed, without costs or disbursements.

Order of the Supreme Court, New York County (Louis Grossman, J.), entered on or about December 5, 1985, which denied plaintiff's motion to vacate the Note of Issue filed by defendant, is reversed on the law and the facts and the motion granted, without costs or disbursements.

During the oral arguments held in connection with this matter, defendant-landlord stated that the parties were in the process of completing discovery in the Supreme Court which, according to defendant, should resolve the issue in dispute herein. Since defendant has indicated that it favors a determination by the Supreme Court, injunctive relief ("Yellowstone") is not required.

Special Term should have granted plaintiff's motion for an order striking defendant's Note of Issue. The Note of Issue, which was filed before the case was, in fact, ready for trial, was based upon an erroneous statement of readiness when it wrongly asserted that plaintiff had waived discovery. Moreover, not only had discovery not yet transpired, but defendant had, at the time, apparently not even served an answer to plaintiff's verified complaint.

All concur.