Opinion
No. 13–398/399.
2014-03-19
The BOARD OF MANAGERS OF THE DIPLOMAT CONDOMINIUM, Plaintiff–Respondent, v. PRESTON TAYLOR PROJECTS, LLC, Defendant–Appellant, and The City of New York and the State of New York, Defendants.
The underlying January 2013 motion brought by defendant-appellant, denominated as one to strike a notice of trial, was properly denied, as academic, inasmuch as no notice of trial had in fact been filed at that juncture, with the case then remaining on the court's pre-note calendar. Nor was defendant's motion to reargue the initial motion a proper vehicle to strike the subsequent (April 22, 2013) notice of trial filed by plaintiff ( see Simpson v. Loehmann, 21 N.Y.2d 990 [1968];Fox v. Abe Schrader Corp., 36 A.D.2d 591 [1971] ). Moreover, defendant's vague assertion that discovery is incomplete is insufficient to establish that “the action is not entitled to be on the trial calendar” (22 NYCRR 208.17[c] ), particularly given the prior unappealed order setting a July 24, 2012 deadline for plaintiff to comply with discovery or face a potential motion by defendant “for preclusion at trial.”