Macaluso v. Glengariff Corp. , 153 A.D.3d 915 ( 2017 )

Macaluso v Glengariff Corp. (2017 NY Slip Op 06358)

Macaluso v Glengariff Corp.

2017 NY Slip Op 06358

Decided on August 30, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
BETSY BARROS, JJ.

2016-09373
(Index No. 700725/14)

[*1]Giuseppe Macaluso, respondent,

v

Glengariff Corporation, appellant.

Melito & Adolfsen P.C., New York, NY (Robert D. Ely of counsel), for appellant.

Dalli & Marino, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Queens County (McDonald, J.), entered August 25, 2016, as granted that branch of the plaintiff's motion which was to compel it to comply with discovery demands.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was to compel the defendant to comply with discovery demands is denied.

Approximately four months after filing a note of issue and certificate of readiness for trial, the plaintiff made discovery demands. After the defendant objected on the ground that the note of issue had already been filed, the plaintiff moved, inter alia, to compel the defendant to comply with the demands. The Supreme Court granted that branch of the plaintiff's motion, and the defendant appeals.

The Supreme Court should have denied that branch of the plaintiff's motion which was to compel the defendant to comply with the discovery demands. The plaintiff failed to demonstrate the existence of unusual or unanticipated circumstances that developed subsequent to the filing of the note of issue warranting additional discovery to prevent substantial prejudice (see 22 NYCRR 202.21[d]; Matthew v City of New York, 90 AD3d 1002; Tirado v Miller, 75 AD3d 153, 161; Audiovox Corp. v Benyamini, 265 AD2d 135, 140).

HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court