600 Partners Co. v. Berger , 686 N.Y.S.2d 305 ( 1999 )

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 15, 1997, which, insofar as appealed from, denied defendants-appellants’ motions to vacate the note of issue, unanimously modified, on the facts, to grant appellants leave to conduct depositions within 30 days after service of a copy of this order, and otherwise affirmed, without costs.

Assuming, as appellants argue, that the motion court lacked authority to recall, sua sponte, its prior order dismissing the action as against them, their remedy was not to ignore such recall order, but to take an appeal, which they did, but inexplicably failed to pursue. The instant appeal from the denial of appellants’ motion to vacate the note of issue, in which they argued that the recall order is invalid and that they are therefore no longer party to the action, does not bring the recall order up for review. Appellants’ contention that plaintiff’s claims against one of them has been discharged in bankruptcy cannot be reviewed on a record that does not include the discharge order. Given the unusual circumstances of this case, we modify to permit appellants to conduct post note-of-issue depositions. Concur — Sullivan, J. P., Nardelli, Rubin and Mazzarelli, JJ.