Salwen Paper Co. v. Lynch

896 Discovery had not been completed since plaintiff had not answered defendant’s interrogatories or complied with its notice to produce. Therefore, the action was not ready for trial and plaintiff’s note of issue and statement of readiness should have been vacated and the action should have been stricken from the Trial Calendar (22 NYCRR 675.4; Smart v Conklin Brass & Copper Co., 96 AD2d 591; Najjar v National Kinney Corp., 89 AD2d 845). Under the circumstances, neither dismissal nor an award of counsel fees was warranted, but it was an appropriate exercise of Special Term’s discretion to order plaintiff to comply with the outstanding discovery requests (CPLR 3126; Goldner v Lendor Structures, 29 AD2d 978). Special Term erred, however, in providing plaintiff the option of contesting the discovery requests. Having failed to timely object (CPLR 3122, 3133), plaintiff is now foreclosed from so doing because the disclosure requests were not “palpably improper” (Zambelis v Nicholas, 92 AD2d 936), and plaintiff has made no claim that the evidence, sought to be discovered is privileged under CPLR 3101 (Coffey v Orbachs, Inc., 22 AD2d 317; Blessin v Greenberg, 89 AD2d 862). Lazer, J. P., O’Connor, Weinstein and Brown, JJ., concur.