Roman v. Caputo

There is no compelling reason here presented why there should be a departure from the well-recognized requirement that a note of issue must be filed at least twelve days before the commencement of any term and that a preference should not be granted until an action is properly on the calendar (Rules Civ. Prac., rules 150, 151; Manarrow Realties, Inc., v. Conrad Corp., 222 App. Div. 652; cf. Zimmerman v. Rahmeyer, 230 App. Div. 719). The proper practice for plaintiff to have adopted in the circumstances was to have moved for an injunction pendente lite. In disposing of that injunction, the court could properly have imposed as one of the conditions an early trial on a short note of issue (Roberts v. Schaf, 76 App. Div. 433). The order should be reversed and motion denied, without costs and without prejudice to an application for a temporary injunction.

Glennon, J. P., Cohn, Callahan, Shientag and Heffernan, JJ., concur.

Order unanimously reversed and the motion denied, without costs, and without prejudice to an application for a temporary injunction.