Drapaniotis v. 36-08 33rd Street Corp., 01-01892

• Decision Date: 13 November 2001
• Docket Number: 2,01-01892
• Parties: VASILIKI DRAPANIOTIS, ETC., RESPONDENT, v. 36-08 33RD STREET CORP., ET AL., APPELLANTS. 2001-01892 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

VASILIKI DRAPANIOTIS, ETC., RESPONDENT, v. 36-08 33RD STREET CORP., ET AL., APPELLANTS.

2001-01892

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - October 17, 2001

November 13, 2001

Michael Mantell, New York, N.Y., for appellants.

Mark Marcus, Maspeth, N.Y., for respondent.

DECISION & ORDER

Lawrence J. Bracken, P.J.

Gabriel M. Krausman

Daniel F. Luciano

Nancy E. Smith

Thomas A. Adams, JJ.

In an action, inter alia, to recover damages for wrongful eviction, the defendants appeal from an order of the Supreme Court, Queens County (Glover, J.), dated January 24, 2001, which, in effect, denied that branch of their motion which was to vacate the plaintiff's note of issue and directed that the parties submit to examinations before trial on March 28, 2001.

ORDERED that the order is modified, on the law, by deleting the provision thereof which, in effect, denied that branch of the motion which was to vacate the plaintiff's note of issue, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellants.

A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed (see, Garofalo v. Mercy Hosp., 271 A.D.2d 642; Cromer v. Yellen, 268 A.D.2d 381; Club Italia v. Hallon Fashion Trading, 268 A.D.2d 219). Here, the parties have, in effect, conceded that discovery in this matter has not been completed. Thus, the note of issue should be vacated.

BRACKEN, P.J., KRAUSMAN, LUCIANO, SMITH and ADAMS, JJ., concur.