Opinion
12196N Index No. 30966/17 Case No. 2020-01949
10-27-2020
Larry GONZALEZ, Plaintiff- Respondent, v. Linda MILES, et al, Defendants- Appellants.
Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for appellants. Law Office of Albert W. Cornachio, P.C., Rye Brook (Christopher R. Block of counsel), for respondent.
Law Office of James J. Toomey, New York (Evy Kazansky of counsel), for appellants.
Law Office of Albert W. Cornachio, P.C., Rye Brook (Christopher R. Block of counsel), for respondent.
Kapnick, J.P., Webber, Gonza´lez, Shulman, JJ.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered February 4, 2020, which denied defendants' motion to vacate the note of issue and direct plaintiff to appear before a vocational rehabilitationist expert selected by defendants, unanimously affirmed, without costs.
A lack of diligence in seeking discovery does not constitute unusual or unanticipated circumstances such to warrant vacatur of a note of issue (see Aikanat v. Spruce Assoc., L.P., 182 A.D.3d 437, 123 N.Y.S.3d 8 [1st Dept. 2020] ; Colon v. Yen Ru Jin, 45 A.D.3d 359, 845 N.Y.S.2d 281 [1st Dept. 2007] ). When defendants stipulated that discovery was complete, they were aware, by way of the verified bill of particulars and plaintiff's deposition, that he was making a lost earnings claim, thus waiving the examination they now seek (see Chichilnisky v. Trustees of Columbia Univ. in City of N.Y., 52 A.D.3d 206, 859 N.Y.S.2d 143 [1st Dept. 2008] ).