Opinion
14545 Index No. 106778/07 Case No. 2020–04698
11-04-2021
Jerzy DABROWSKI et al., Plaintiffs–Respondents, v. ABAX INCORPORATED etc., et al., Defendants–Appellants, John Doe Bonding Companies, 1–20, et al., Defendants.
Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for ABAX Incorporated, appellant. Bernard Kobroff, Scarsdale, for John Bleckman and Edward Monaco, appellants. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for ABAX Incorporated, appellant.
Bernard Kobroff, Scarsdale, for John Bleckman and Edward Monaco, appellants.
Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
Mazzarelli, J.P., Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered November 5, 2020, which denied defendants’ motion to strike the note of issue, unanimously affirmed, with costs.
In light of the unusual circumstances underlying this litigation, Supreme Court providently exercised its discretion in denying defendants’ motion to vacate the note of issue while allowing discovery to continue (see WVH Hous. Dev. Fund Corp. v. Brooklyn Insulation & Soundproofing, Inc., 193 A.D.3d 523, 141 N.Y.S.3d 841 [1st Dept. 2021] ["A court, in its discretion, may allow post-note of issue discovery without vacating the note of issue as long as prejudice to either party would not result"]). Contrary to defendants’ contention that the action had been dismissed pursuant to 22 NYCRR 202.27, the court recognized that an entry on ecourts reflecting a final disposition of the action was a clerical error, as there was no order of dismissal (see Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 19, 970 N.Y.S.2d 229 [2d Dept. 2013] ; see also Dorel Steel Erection Corp. v. Seaboard Sur. Co. , 291 A.D.2d 309, 309–310, 738 N.Y.S.2d 52 [1st Dept. 2002] ). Even by defendants’ rendition of the facts, the court that had purportedly disposed of the action did not note any default but rather told defendants that they could move to dismiss the claims of certain class members who did not appear for their depositions.