10 Park Square Associates, Inc. v. Travelers

—Order unanimously reversed on the law without costs and motion denied. Memorandum: In March 1989 a fire destroyed property owned by plaintiffs. When defendant insurer denied their claim for damages arising from the loss, plaintiffs commenced this action. A note of issue and statement of readiness were filed on September 8, 1993, and a jury thereafter found in favor of defendant. We reversed the judgment and granted a new trial (10 Park Sq. Assocs. v The Travelers, 244 AD2d 870). In preparation for the new trial, 10 Park Square Associates, Inc. (plaintiff) moved to compel discovery.

Supreme Court erred in granting plaintiff’s motion. “Absent a timely motion to strike a note of issue or statement of readiness, a party is foreclosed from further discovery unless there is a demonstration of special, unusual or extraordinary circumstances” (Stanovick v Donner-Hanna Coke Corp., 116 AD2d 1000; see, Gray v Crouse-Irving Mem. Hosp., 107 AD2d 1038, 1039). A lack of diligence in conducting discovery does not constitute an extraordinary circumstance (see, Laudico v Sears, Roebuck & Co., 125 AD2d 960, 961), nor does remittal for a new trial on the ground that the judgment was unsupported by adequate proof (see, S.A.B. Enters. v Village of Athens, 178 AD2d 820, 821). (Appeal from Order of Supreme Court, Erie County, Fahey, J. — Discovery.) Present — Pine, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.