Restored to the pre note of issue discovery stage

Ryskin v Corniel, 2020 NY Slip Op 01658 [2d Dept. 2020]

The Supreme Court should have denied, as unnecessary, that branch of the plaintiff’s motion which was to restore the action to the active calendar (see Leach v North Shore Univ. Hosp. at Forest Hills, 13 AD3d 415, 416; Neidereger v Hidden Park Apts., 306 AD2d 392). Since the note of issue the plaintiff filed in January 2014 was vacated, thereafter, the action was restored to the pre-note of issue discovery stage (see Leach v North Shore Univ. Hosp. at Forest Hills, 13 AD3d at 416). Because no note of issue had been filed, the action was not on the trial calendar. Therefore, the court’s action of marking the action “disposed” as of April 15, 2014, after the plaintiff failed to file and serve a note of issue by the court-ordered deadline, did not dismiss the action (see Arroyo v Board of Educ. of City of N.Y., 110 AD3d 17, 21). For the same reason, contrary to the defendant’s contention, CPLR 3404 was inapplicable (see Bar-El v Key Food Stores Co., Inc., 11 AD3d 420, 421). As “this action was never properly dismissed, there was no need for a motion to restore” (Arroyo v Board of Educ. of City of N.Y., 110 AD3d at 21).

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to extend his time to file a note of issue. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” Here, the plaintiff established good cause for his delay in completing discovery and filing a note of issue based on law office failure, among other things (see CPLR 2004; see generally Tewari v Tsoutsouras, 75 NY2d 1, 12-13; Oliver v Town of Hempstead, 68 AD3d 1079Storchevoy v Blinderman, 303 AD2d 672). Accordingly, we grant that branch of the plaintiff’s motion, and the plaintiff’s time to complete outstanding discovery and file a note of issue is extended until 30 days after service upon him of a copy of this decision and order.

We disagree with the Supreme Court’s determination to grant the defendant’s cross motion to strike the plaintiff’s amended bill of particulars. The stipulation dated November 11, 2014, provided, inter alia, that discovery was complete except for the plaintiff’s deposition and medical examination and that the plaintiff would file the note of issue by January 23, 2015. However, although the plaintiff failed to file the note of issue by this date, the defendant subsequently participated in the deposition and medical examination of the plaintiff. While we do not condone the parties’ entry into a stipulation regarding the scheduling of discovery and filing deadlines without court approval, in view of the fact that the parties proceeded with discovery beyond the agreed deadline, the court should have denied the defendant’s cross motion to strike the plaintiff’s amended bill of particulars.

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