DEFENDANT WHOSE ANSWER WAS STRICKEN CAN'T SEEK DISCOVERY BY VACATING PLAINTIFF'S NOTE OF ISSUE

Court: Supreme Court, Appellate Division, First Department, New York

Case: Karly Servais v. Silk Nail Corp.

Date: June 14, 2012

From: New York attorney Gary E. Rosenberg

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Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 16, 2011, which, insofar as appealed from, in this action for personal injuries, denied defendant Silk Nail Corp.'s motion to vacate the note of issue and certificate of readiness, unanimously affirmed, without costs.

Supreme Court properly denied Silk Nail Corp.'s motion because its answer had been stricken by the court's prior order. Accordingly, Silk Nail Corp. was not entitled to any further discovery (see Hall v. Penas, 5 A.D.3d 549, 772 N.Y.S.2d 835 [2004]), including discovery "in preparation for an appearance at inquest" (Yeboah v. Gaines Serv. Leasing, 250 A.D.2d 453, 454, 673 N.Y.S.2d 403 [1998]; see Gray v. Jaeger, 57 A.D.3d 303, 868 N.Y.S.2d 521 [2008]). Silk Nail Corp.'s attempt to relitigate the merits of the order striking its answer is improper as no appeal was taken from that order, and the time in which to seek reargument or to take an appeal from that order has long since lapsed (CPLR 2221[d][3]; 5513).

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