The principle that the service of a CPLR 3216 demand constitutes a waiver of discovery appears to have originated in a line of cases originating in the Fourth Department. In the seminal case of Siragusa v Teal's Express ( 96 AD2d 749 [4th Dept 1983]), the Court was confronted with a situation in which the defendant, while contending that it was entitled to an examination before trial, served a CPLR 3216 demand on the plaintiff. The Court reasoned,
Moreover, plaintiff exhibited "a pattern of persistent neglect and delay in prosecuting the action" ( Malcolm v. Rite Aid of N.Y., Inc. , 100 A.D.3d 837, 838-839, 954 N.Y.S.2d 587 [2d Dept. 2012] ) and failed to "negate[ ] any inference that [he] intended to abandon [the] action" ( Restaino v. Capicotto , 26 A.D.3d 771, 772, 808 N.Y.S.2d 879 [4th Dept. 2006] ). Viewing "the totality of the relevant circumstances," we conclude that plaintiff "failed to pursue [his] lawsuit with any diligence" and displayed "dilatory tactics and [an] apparent lack of interest" ( Nichols , 133 A.D.2d at 914, 520 N.Y.S.2d 282 ). Inasmuch as the court did not abuse its discretion in granting defendant's motion and dismissing the complaint, plaintiff's contention that defendant's service of a 90-day demand waived further discovery (seeWitmer v. Biehls , 219 A.D.2d 870, 870, 632 N.Y.S.2d 43 [4th Dept. 1995] ; Siragusa v. Teal's Express , 96 A.D.2d 749, 749-750, 465 N.Y.S.2d 321 [4th Dept. 1983] ) is academic. Finally, we have considered plaintiff's remaining contentions and conclude that they lack merit.
By demanding that plaintiff file a note of issue, with the concomitant necessity of filing a statement of readiness, defendant waived his right to further discovery. A demand for such filing is inconsistent with a demand for discovery (see, King v Milazzo, 155 A.D.2d 1000; Siragusa v Teal's Express, 96 A.D.2d 749, 750).
Plaintiff's alternative motion to vacate the prior order based on excusable default (CPLR 5015) was the procedurally proper vehicle, rather than a motion to reargue, and we grant that motion in the exercise of our discretion. We find that plaintiff met his burden of showing a sufficient excuse for the default in opposing the motion to dismiss for failure to prosecute, a justifiable excuse for the default in filing a note of issue pursuant to defendant's 90-day demand, and a meritorious cause of action (CPLR 3216 [e]; 5015 [a] [1]; see, e.g., Miniotis v Dugan Bros., 44 A.D.2d 708; see also, Siragusa v Teal's Express, 96 A.D.2d 749).
However, the plaintiffs failed to move for sanctions under CPLR 3126 at the appropriate time (i.e., prior to trial) and instead filed a note of issue and certificate of readiness, expressly affirming that discovery had been completed (see, CPLR 3402; Bermudez v Laminates Unlimited, 134 A.D.2d 314, 315). Accordingly, the plaintiffs waived any claim regarding noncompliance with pretrial disclosure and precalendar orders (see, Siragusa v Teal's Express, 96 A.D.2d 749; Levy v Wexler, 16 A.D.2d 688).
With respect to Malvin's cross motion for virtually the same disclosure which he unsuccessfully sought in late 1985, the Supreme Court correctly determined that it was bound by the prior order denying the disclosure (see, George W. Collins, Inc. v Olsker-McLain Indus., 22 A.D.2d 485). Although we are not bound by the law of the case as fixed by the Supreme Court (see, Martin v City of Cohoes, 37 N.Y.2d 162, 165; Scott v Transkrit Corp., 91 A.D.2d 682), we conclude that Malvin has waived his right to conduct disclosure by serving a demand for a note of issue (see, Siragusa v Teal's Express, 96 A.D.2d 749) and by failing to seek it in the period after the case was marked "off" and before the case was restored to the calendar. Kooper, J.P., Harwood, Rosenblatt and Miller, JJ., concur.
Order insofar as appealed from unanimously reversed on the law with costs and motion denied, in accordance with the following memorandum: It was an improvident exercise of discretion for Special Term to grant defendants additional discovery and a physical examination of plaintiff (see, Siragusa v Teal's Express, 96 A.D.2d 749). By demanding that plaintiff file a note of issue pursuant to CPLR 3216, defendants waived their right to have plaintiff examined and to obtain additional discovery (see, Gray v Crouse-Irving Mem. Hosp., 107 A.D.2d 1038).
"The filing of a note of issue or a demand for such filing is tantamount to asserting that all pretrial proceedings have been completed and that the case is in a trial posture." ( Siragusa v. Teal's Express, 96 A.D.2d 749, 750.) By demanding pursuant to CPLR 3216 that plaintiff file a note of issue, the demanding defendants waived their right to a physical examination of plaintiff ( Siragusa v. Teal's Express, supra; Cerrone v. S'Doia, 11 A.D.2d 350, 352; see MacLeod v Nolte, 106 A.D.2d 860).
the plaintiff[] waived any claim regarding noncompliance with pretrial disclosure and precalendar orders" (see also Levy v Wexler, 16 AD2d 688 [2d Dept 1962]). Likewise, Siragusa v Teal's Express, 96 AD2d 749, 750 [4th Dept 1983] recognized that "filing of a note of issue . . . is tantamount to asserting that all pretrial proceedings have been completed . . . Once the statement of readiness has been filed 'each party to the action is deemed to have assented to the statements contained therein and to have waived his right to pursue [discovery] proceedings'" (Cerrone v S'Doia, 11 AD2d 350, 352 [4th Dept 1960]).
The branch of the motion to preclude plaintiff from introducing evidence at the time of trial on its claim for lost rental income is denied. It is well settled in the Second Department that the filing of a note of issue and certificate of readiness bars seeking to enforce a discovery sanction post-note of issue (CPLR 3126; see e.g. Siragusa v Teal's Express, Inc., 96 AD2d 749 [2d Dept 1983]). Nevertheless, Goldstein has not shown that "unusual or unanticipated circumstances" have developed "subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice" (Uniform Rules of Trial Cts [22 NYCRR] § 202.21[d]).