Blinds To Go (US), Inc. v. Times Plaza Development

In an action to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated February 24, 2012, which denied its motion to vacate the note of issue and to compel additional discovery. Ordered that the order is affirmed, with costs. Where additional discovery is sought more than 20 days after the filing of the note of issue, the moving party must demonstrate unusual or unanticipated circumstances and substantial prejudice absent the additional discovery (see Tirado v Miller, 75 AD3d 153, 157 [2010]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2000]). Here, the defendant failed to establish any discrepancy between the testimony of certain witnesses who testified for the plaintiff at a prior trial (see Blinds to Go 776 [US], Inc. v Times Plaza Dev., L.P., 88 AD3d 838 [2011]), and that of an employee of the plaintiff who subsequently testified in an unrelated action in federal court. Therefore, the defendant failed to demonstrate any unusual or unanticipated circumstances so as to warrant vacating the note of issue and ordering additional discovery (see Audiovox Corp. v Benyamini, 265 AD2d at 140). Nor did the defendant make a showing of special circumstances so as to entitle it to depose the plaintiffs expert (see Rivers v Birnbaum, 102 AD3d 26, 38 n 6 [2012]). The defendant’s remaining contentions are not properly before this Court. Rivera, J.E, Skelos, Chambers and Hall, JJ., concur.