| Gonzalez v Miles |
| 2020 NY Slip Op 06052 |
| Decided on October 27, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: October 27, 2020
Before: Kapnick, J.P., Webber, González, Shulman, JJ.
Index No. 30966/17 Appeal No. 12196N Case No. 2020-01949
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.
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 AD3d 437 [1st Dept 2020]; Colon v Yen Ru Jin, 45 AD3d 359 [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 AD3d 206 [1st Dept 2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 27, 2020