Greene v. United Mutual Life Insurance

At the time of the service of the note of issue, the ease was not at issue since a proper reply to the counterclaims asserted by defendant had not been served. Moreover, defendant had not been afforded an opportunity to examine plaintiff before trial; and, in fact, any application to examine before trial would have been premature before the action was at *762issue (Dubow v. Ames Home Pub. Co., 2 A D 2d 675). Hence, at the time of service of the note of issue, all proper preliminary proceedings had not been completed (Appellate Division, 1st Dept., Statement of Readiness Rule, subds. 5, 6). Therefore, it was an improvident exercise of discretion to deny defendant’s timely motion to strike the cause from the calendar (Falkenstein v. Heyman, 12 A D 2d 918). Concur — Botein, P. J., Breitel, Valente, McNally and Eager, JJ.