Marl v. Weinzoff , 32 Misc. 2d 650 ( 1961 )

Raymond J. Mino, J.

Motion to strike from the calendar of the ground that the defendants have not had a reasonable opportunity to complete all necessary or proper proceedings as set forth in subdivision 1-a of the Special Readiness Rule for the Supreme Court in the counties within the Third Judicial Department for the filing of a Statement for Readiness, effective January 1, 1957 and adopted by the County Court of Ulster County, effective March 1, 1958..

This action was commenced on August 18,1961, and issue was joined on September 7, 1961. Less than one month later, on October 4, 1961, plaintiff filed a note of issue. Within 20 days thereafter the defendant moved to strike from the calendar.

The defendant has not had a reasonable opportunity to complete the allowable preliminary proceeding’s. The suggestion made by the plaintiff’s attorney, that he will not move the case for trial until defendants have had a reasonable opportunity to conduct the preliminary proceeding’s, violates the clear intent of the rule. ‘‘ An agreement between the parties whereby the defendants would refrain from moving to strike the cause from the Trial Term Calendar on condition that it would not be moved by plaintiffs until the preliminary proceeding had been completed would be quite abhorrent both to the letter and the design of the appellate court’s rule.” (Hoover v. Ruth, 8 Misc 2d 496, 497.) The motion is granted.