Spilky v. TRW, Inc.
| Decision Date | 04 March 1996 |
| Citation | 638 N.Y.S.2d 792,225 A.D.2d 539 |
| Parties | Robert M. SPILKY, et al., Appellants, v. TRW, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Spilky & Spilky, Garden City (Robert M. Spilky, pro se of counsel), for appellants.
Jones, Day, Reavis & Pogue, New York City (Heidi A. Wendel, of counsel), for respondent.
Before BRACKEN, J.P., and MILLER, JOY, HART and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), the plaintiffs appeal from an order of the Supreme Court, Nassau County (Robbins, J.), dated September 21, 1994, which granted the defendant's motion to vacate the plaintiffs' note of issue and dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiffs commenced this action against the defendant, TRW, Inc. (hereinafter TRW) in September 1987 and issue was joined in October 1987. On March 8, 1994, the court sua sponte directed the plaintiffs to serve and file a note of issue within 90 days, and stated that the failure to comply within 90 days could serve as a basis for dismissal pursuant to CPLR 3216.
As of August 14, 1994, 68 days after the expiration of the 90-day period in which they were to file a note of issue, the plaintiffs had yet to file a note of issue. It was only after TRW notified the court of this fact and requested that it dismiss the action that the plaintiffs filed a note of issue. Along with the note of issue, the plaintiffs filed a certificate of readiness indicating that all necessary discovery had been completed. However, the plaintiffs had yet to serve interrogatories on TRW, as the parties had agreed. TRW subsequently moved to vacate the plaintiffs' note of issue and dismiss the action pursuant to CPLR 3216.
Contrary to the plaintiffs' contentions, the court properly vacated the note of issue and dismissed their complaint. The plaintiffs' certificate of readiness incorrectly stated that all pretrial discovery had been completed. Because this was a material fact, the court properly vacated the note of issue (see, 22 NYCRR 202.21[e]; Carte v. Segall, 134 A.D.2d 396, 520 N.Y.S.2d 943; see also, Levy v. Schaefer, 160 A.D.2d 1182, 1183, 555 N.Y.S.2d 192).
Moreover, the court's March 8, 1994, directive placed the plaintiffs on notice that their failure to file a note of issue within 90 days would serve as the basis for dismissal of the action pursuant to CPLR 3216. Sin...
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