Opinion
04-04-2024
Carol KENNEY etc., Plaintiff–Appellant, v. ESSEX MANAGEMENT COMPANY, Defendant–Respondent, The Water Company, LLC, Nominal Defendant–Respondent.
Carter Ledyard & Milburn LLP, New York (Stephen M. Plotnick of counsel), for appellant. Augello Law Group, P.C., New York (Cynthia A. Augello of counsel), for respondent.
Carter Ledyard & Milburn LLP, New York (Stephen M. Plotnick of counsel), for appellant.
Augello Law Group, P.C., New York (Cynthia A. Augello of counsel), for respondent.
Kern, J.P., Singh, González, Pitt-Burke, Rosado, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about September 27, 2023, which denied plaintiff’s motion to extend the deadline to file the note of issue for 30 days, unanimously affirmed, without costs. Appeal from conference order, same court and Justice, entered on or about September 27, 2023, unanimously dismissed, without costs, as academic. Supreme Court did not improvidently exercise its discretion in denying plaintiff’s unopposed motion to extend the time to file a note of issue by 30 days (see Tewari v. Tsoutsouras, 75 N.Y.2d 1, 12, 550 N.Y.S.2d 572, 549 N.E.2d 1143 [1989]). Although plaintiff explained that the parties had not completed discovery because they reached a tentative settlement, the final scheduling order plainly stated that there would be "no stay of discovery pending motion practice, settlement proceedings, or ADR," and that depositions and other discovery would be "automatically waived and precluded" if not completed by the deadlines set in the order (see IO Experience Design LLC v. C & A Mktg. Inc., 220 A.D.3d 444, 197 N.Y.S.3d 197 [1st Dept. 2023]; Perez De Sanchez v. Trevz Trucking LLC, 124 A.D.3d 527, 527–528, 998 N.Y.S.2d 626 [1st Dept. 2015]). Accordingly, discovery had been waived and precluded before the motion was made.