Curto v. Zittel's Dairy Farm

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), dated January 3, 2005. The order, inter alia, granted the motions of defendants Zittel’s Dairy Farm, John Zittel, Sandra Zit-tel and Thomas Dexter seeking leave to serve an amended answer and to strike the note of issue and certificate of readiness.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We conclude in appeal No. 1 that Supreme Court properly exercised its discretion in granting the motion of Zittel’s Dairy Farm, John Zittel, Sandy Zittel and Thomas Dexter (defendants) seeking leave to serve an amended answer based upon their inadvertent failure to deny plaintiffs allegations that Thomas Dexter and defendant Jeffrey Gasper are the alter egos of Zittel’s Dairy Farm, John Zittel and Sandy Zittel (see Sidor v Zuhoski, 257 AD2d 564, 565 [1999]). We further conclude in appeal No. 1 that the court properly granted defendants’ motion to strike the note of issue and certificate of readiness. Defendants timely sought that relief within 20 days after service of the note of issue and certificate of readiness and provided an affirmation showing that discovery was incomplete (see Aviles v 938 SCY Ltd., 283 AD2d 935, 936 [2001]).

We conclude in appeal No. 2 that the court properly denied that part of plaintiff’s motion seeking a stay of a prior order denying in part plaintiff’s prior motion for partial summary judgment (see Peerce v Peerce, 97 AD2d 718, 719 [1983]). Finally, we further conclude in appeal No. 2 that the court properly denied that part of plaintiff’s motion seeking a temporary restraining order (see generally CPLR 6301). Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.