Syllman v. 67-25 Dartmouth Street Corp.

—In an action, inter alia, to recover damages pursuant to a lease, the plaintiff appeals from an order of the Supreme Court, Queens County (Mi [580] laño, J.), dated April 8, 1996, which denied his motion to strike a note of issue filed by the defendant and to restore his motion to compel discovery. Ordered that the order is reversed, on the law and as a matter of discretion, with costs, and the motion is granted. In January 1995 the plaintiff brought a motion to compel discovery in this action as a result of the defendant’s failure to respond to requests for discovery and inspection. In June 1995 the defendant moved for summary judgment dismissing the complaint and the parties consented to mark the discovery motion "off the calendar”, pending a determination of the motion for summary judgment. In August 1995 the Supreme Court denied the motion. Thereafter, in January 1996, the defendant filed a note of issue on which it indicated that "discovery proceedings now known to be necessary” had been completed. However, since the plaintiff’s motion to compel discovery was still outstanding, the foregoing statement was incorrect and the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion to strike the note of issue filed by the defendant and to restore his motion to compel discovery (see, Carella v Carella, 97 AD2d 393). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.