Hochberg v. Maimonides Medical Center

In an action to recover damages for medical malpractice, the defendant appeals from so much of an order of the Supreme Court, Kings County (Silverman, J.), dated July 11, 2006, as, in effect, denied its cross motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. Ordered that the order is affirmed insofar as appealed from, with costs. In response to a 90-day notice served by the defendant pursuant to CPLR 3216, the plaintiff filed a timely note of issue. However, the note of issue was a nullity because the certificate of readiness and affirmation of compliance filed therewith incorrectly stated that discovery was complete (see Blackwell v Long Is. Coll. Hosp., 303 AD2d 615, 616 [2003]; Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002]; Macancela v Pekurar, 286 AD2d 320, 321 [2001]). Nonetheless, under the circumstances of this case, the court providently exercised its discretion in denying the defendant’s motion to dismiss and setting an expedited discovery schedule (see CPLR 3216; Ferrara v N.Y. & Atl. Ry. Co., 25 AD3d 753 [2006]; Betty v City of New York, 12 AD3d 472, 473 [2004]; Davis v Goodsell, 6 AD3d 382, 383 [2004]; Tu Ying Chen v Nash, 266 AD2d 279 [1999]; Matter of Simmons v McSimmons, Inc., 261 AD2d 547, 548 [1999]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.