Aviles v. 938 SCY Ltd. , 725 N.Y.S.2d 256 ( 2001 )

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying the motion of 938 SCY Limited, d/b/a Friends & Players (defendant), seeking to strike the note of issue and certificate of readiness. Defendant sought that relief within 20 days after service of the note of issue and certificate of readiness and provided an affidavit “showing in what respects the case [was] not ready for trial” (22 NYCRR 202.21 [e]; see, Audiovox Corp. v Benyamini, 265 AD2d 135, 139). Contrary to plaintiff’s contention, defendant was not required to demonstrate unusual or unanticipated circumstances in seeking this relief under 22 NYCRR 202.21 (e) (see, Audiovox Corp. v Benyamini, supra, at 139-140; cf., 22 NYCRR 202.21 [d]). Also contrary to plaintiff’s contention, discovery was incomplete when the note of issue and certificate of readiness was filed. Thus, we modify the order by granting defendant’s motion and striking the note of issue and certificate of readiness. Based on our resolution of this issue, we do not address defendant’s remaining contention. (Appeal from Order of Supreme Court, Monroe County, Barry, J. — Discovery.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.