Opinion
April 29, 1985
Appeal from the Supreme Court, Kings County (Clemente, J.).
Order modified by (1) adding thereto a provision that defendant's motion is granted to the extent of vacating plaintiff's note of issue and statement of readiness and thereupon striking the action from the calendar, and is denied in all other respects, and (2) deleting the last sentence thereof. As so modified, order affirmed, with costs to defendant. Plaintiff's time to respond to defendant's interrogatories and notice to produce is extended until 60 days after service upon it of a copy of the order to be made hereon, with notice of entry.
Discovery had not been completed since plaintiff had not answered defendant's interrogatories or complied with its notice to produce. Therefore, the action was not ready for trial and plaintiff's note of issue and statement of readiness should have been vacated and the action should have been stricken from the Trial Calendar (22 NYCRR 675.4; Smart v. Conklin Brass Copper Co., 96 A.D.2d 591; Najjar v. National Kinney Corp., 89 A.D.2d 845). Under the circumstances, neither dismissal nor an award of counsel fees was warranted, but it was an appropriate exercise of Special Term's discretion to order plaintiff to comply with the outstanding discovery requests (CPLR 3126; Goldner v. Lendor Structures, 29 A.D.2d 978). Special Term erred, however, in providing plaintiff the option of contesting the discovery requests. Having failed to timely object (CPLR 3122, 3133), plaintiff is now foreclosed from so doing because the disclosure requests were not "palpably improper" ( Zambelis v. Nicholas, 92 A.D.2d 936), and plaintiff has made no claim that the evidence sought to be discovered is privileged under CPLR 3101 ( Coffey v Orbachs, Inc., 22 A.D.2d 317; Blessin v. Greenberg, 89 A.D.2d 862). Lazer, J.P., O'Connor, Weinstein and Brown, JJ., concur.