Opinion
July 12, 1996
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Balio, JJ.
Amended order unanimously reversed on the law without costs, motion granted and complaint and cross claims against defendants ABC Paving Co., Inc., and Gateway Trade Center, Inc., dismissed. Memorandum: Supreme Court erred in denying the motion of ABC Paving Co., Inc., and Gateway Trade Center, Inc. (defendants), for summary judgment dismissing the complaint against them. In support of their motion, defendants submitted proof in evidentiary form establishing that the motor vehicle accident was not caused by any condition or act for which they might be held responsible, and plaintiff failed to raise an issue of fact. The speculation of plaintiff's attorney that further discovery would yield factual issues precluding summary judgment is insufficient to defeat defendants' motion ( see, Penn Iron Metal Co. v Gross, 192 A.D.2d 1059, 1060; Levy, King White Adv. v. Gallery of Homes, 177 A.D.2d 967, 967-968).
Our conclusion that defendants are not liable to plaintiff as a matter of law necessarily defeats the cross claims for contribution asserted against them by defendant John Edwards, requiring dismissal of those cross claims ( see, Stone v Williams, 64 N.Y.2d 639, 642; Mohawk Intl. v. Zangrilli, 161 A.D.2d 1169).
We note that the court abused its discretion in vacating sua sponte plaintiff's note of issue and statement of readiness to allow plaintiff further discovery. "[A]bsent special, unusual or extraordinary circumstances spelled out factually, the motion court lacks discretion to permit further discovery after the note of issue and statement of readiness have been filed" ( Gould v Marone, 197 A.D.2d 862; see, Cottrell v. Spina, 214 A.D.2d 946, 947; see also, Nowak v. Sherman, 198 A.D.2d 842). Plaintiff's contention that defendants' attorney agreed to continue discovery after plaintiff filed the note of issue has no support in the record. In any event, an agreement by the parties to conduct further discovery does not constitute a "special, unusual or extraordinary circumstance" ( Gould v. Marone, supra, at 862; see, Gray v. Crouse-Irving Mem. Hosp., 107 A.D.2d 1038, 1039-1040; Niagara Falls Urban Renewal Agency v. Pomeroy Real Estate Corp., 74 A.D.2d 734, appeal dismissed 50 N.Y.2d 842).