Seck v. Serrano , 2 N.Y.S.3d 97 ( 2015 )

Seck v Serrano (2015 NY Slip Op 00596)

Seck v Serrano

2015 NY Slip Op 00596

Decided on January 22, 2015

Appellate Division, First 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 January 22, 2015
Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels, Gische, JJ.

13996 17611/07

[*1] Cheikh Seck, Plaintiff-Appellant,

v

Steven Serrano, et al., Defendants-Respondents.

Mitchell Dranow, Sea Cliff, for appellant.

Gallagher, Walker, Bianco & Plastaras, Mineola (Michael R. Walker of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about July 8, 2013, which, upon effectively granting renewal/reargument, adhered to its prior order granting defendants' cross motion to dismiss the complaint and denying plaintiff's motion to restore the matter to the trial calendar, unanimously reversed, on the law, the facts, and in the interest of justice, without costs, the complaint reinstated, and the matter restored to the trial calendar.

In exercising our interest of justice jurisdiction, we find that plaintiff was in substantial compliance with the court's September 2012 discovery order (see Commerce & Indus. Ins. Co. v Lib-Com, Ltd., 266 AD2d 142, 145 [1st Dept 1999]). The majority of the authorizations identified in that order were provided to defendants on October 5, 2012, i.e., within eight days of the court's order, and only two authorizations were untimely, but had been provided to defendants within less than one week after the 20-day court imposed deadline for such discovery (see Carlos v 395 E. 15lst St., LLC, 41 AD3d 193 [1st Dept 2007]).

We note that the order was not a conditional, "self-executing" order, which required discovery to be complied with by a specific date, that becomes "absolute" on the specified date if the condition has not been met (see Wilson v Galacia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). Rather, defendants were authorized to renew their application for dismissal if plaintiff failed to comply with the discovery demands by the 20-day deadline. Defendants did not so move, and months later, when they finally did, they were already in receipt of all discovery demanded pursuant to the order.

We have considered the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 22, 2015

CLERK