Carte v. Segall , 520 N.Y.S.2d 943 ( 1987 )

In a medical malpractice action to recover damages for personal injuries, etc., the defendant Segall appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated September 16, 1986, as denied his motion for an order vacating the plaintiffs’ note of issue and certificate of readiness and striking the action from the Trial Calendar.

Ordered that the order is reversed insofar as appealed from, without costs or disbursements, the motion is granted, and the action is stricken from the Trial Calendar pending further discovery.

As the plaintiffs concede, the court of first instance erroneously refused to strike the action from the calendar pending further discovery, in light of the extensive discovery which has yet to be completed, of which the plaintiffs were clearly cognizant when they filed the certificate of readiness falsely declaring that preliminary proceedings had been either completed or waived (see, Recon Car Corp. v Chrysler Corp., 89 AD2d 586; 22 NYCRR 202.21 [b], [c]).

Contrary to the appellant’s contention, however, the plaintiffs have not waived their right to further discovery. If an action is stricken from the calendar, the parties will be returned "to their original pre-note of issue discovery status” (3A Weinstein-Korn-Miller, NY Civ Prac tf 3106.05a). Mangano, J. P., Thompson, Lawrence and Kunzeman, JJ., concur.