Witmer v. Biehls

Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court improvidently exercised its discretion in granting, defendant additional time to complete discovery. By demanding that plaintiff file a note of issue, with the concomitant necessity of filing a statement of readiness, defendant waived his right to further discovery. A demand for such filing is inconsistent with a demand for discovery (see, King v Milazzo, 155 AD2d 1000; Siragusa v Teal’s Express, 96 AD2d 749, 750). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Set Aside Note of Issue.) Present — Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.