Opinion
November 12, 1999
Appeal from Order of Supreme Court, Erie County, Fahey, J. — Discovery.
PRESENT: PINE, J. P., WISNER, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: In March 1989 a fire destroyed property owned by plaintiffs. When defendant insurer denied their claim for damages arising from the loss, plaintiffs commenced this action. A note of issue and statement of readiness were filed on September 8, 1993, and a jury thereafter found in favor of defendant. We reversed the judgment and granted a new trial (10 Park Sq. Assocs. v. The Travelers, 244 A.D.2d 870). In preparation for the new trial, 10 Park Square Associates, Inc. (plaintiff) moved to compel discovery.
Supreme Court erred in granting plaintiff's motion. "Absent a timely motion to strike a note of issue or statement of readiness, a party is foreclosed from further discovery unless there is a demonstration of special, unusual or extraordinary circumstances" (Stanovick v. Donner-Hanna Coke Corp., 116 A.D.2d 1000; see, Gray v. Crouse-Irving Mem. Hosp., 107 A.D.2d 1038, 1039). A lack of diligence in conducting discovery does not constitute an extraordinary circumstance (see, Laudico v. Sears, Roebuck Co., 125 A.D.2d 960, 961), nor does remittal for a new trial on the ground that the judgment was unsupported by adequate proof (see, S.A.B. Enters. v. Village of Athens, 178 A.D.2d 820, 821).