Stewart v. Makhani

• Decision Date: 31 January 2017
• Citation: 46 N.Y.S.3d 556,146 A.D.3d 703,2017 N.Y. Slip Op. 00577
• Parties: Ronald C. STEWART, Plaintiff–Appellant, v. Joseph MAKHANI, et al., Defendants–Respondents, George Bishop, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 703

46 N.Y.S.3d 556

2017 N.Y. Slip Op. 00577

Ronald C. STEWART, Plaintiff–Appellant,

v. Joseph MAKHANI, et al., Defendants–Respondents,George Bishop, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

Jan. 31, 2017.

Goldberg & Rimberg PLLC, New York (Steven A. Weg of counsel), for appellant.

Michael Allan Leon & Associates, New York (Michael A. Leon of counsel), for respondents.

SWEENY, J.P., RICHTER, MAZZARELLI, MANZANET–DANIELS, FEINMAN, JJ.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 16, 2015, which marked plaintiff's motion seeking, inter alia, to strike defendants' answer, withdrawn, denied the parties' application for an extension of time to complete discovery, marked the case off the calendar without prejudice, and permitted either party to restore the matter, upon completion of discovery, to the trial ready calendar by notice of motion application only, unanimously reversed, without costs, and the matter remanded for further proceedings not inconsistent with this order.

A court has broad discretion in supervising disclosure (see Matter of DataSafe, Inc. v. American Express, 2 A.D.3d 224, 225, 769 N.Y.S.2d 30 [1st Dept.2003] ). Nevertheless, the court had no basis for striking this case from the calendar as a sanction for the parties' failure to timely complete discovery. CPLR 3404 does not apply to pre-note of issue cases such as this case (see Johnson v. Minskoff & Sons, 287 A.D.2d 233, 235, 735 N.Y.S.2d 503 [1st Dept.2001] ).

Dismissal of a pre-note of issue case may be predicated on CPLR 3216 and Uniform Rules for Trial Courts (22 NYCRR 202.27 ), neither of which is applicable to the facts of this case (see Tejeda v. Dyal, 83 A.D.3d 539, 540, 920 N.Y.S.2d 662 [1st Dept.2011], lv. dismissed 17 N.Y.3d 923, 934 N.Y.S.2d 372, 958 N.E.2d 550 [2011] ).

While delays in discovery are frustrating, a trial court has the responsibility "to fashion an order consistent with its obligation to bring discovery to an end as quickly as possible. Marking a case off or striking a case during the discovery phase does not further that obligation because it only encourages inaction by the parties and counsel in completing discovery. Ultimately, marking a case off during discovery leads to unnecessary motion practice, loss of valuable time for discovery, and a waste of judicial resources" (Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, 198–199, 725 N.Y.S.2d 57 [2d Dept.2001, lv. dismissed 96 N.Y.2d...