Reilly v. Oakwood Heights Community Church

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated October 28, 1998, which denied their motion to reargue a prior motion of the defendant and granted the defendant’s motion to dismiss the complaint unless the plaintiff provided additional discovery within 60 days of the date of the order. Ordered that the appeal from so much of the order as denied reargument is dismissed, as no appeal lies from an order denying reargument; and it is further, Ordered that the order is affirmed insofar as reviewed; and it is further, Ordered that the defendant is awarded one bill of costs. Under CPLR 3214 (b), service of a notice of motion pursuant to CPLR 3212 stays disclosure until determination of the motion unless the court orders otherwise. Contrary to the plaintiffs’ contention, although the stay is automatic, a court can direct otherwise if there is a legitimate need for discovery (see, John Eric Jacoby, M.D., P. C. v Loper Assocs., 249 AD2d 277, 279). Here, there was a legitimate need for discovery. Therefore, the court properly considered the defendant’s motion to dismiss the complaint for failure to provide discovery during the pendency of the motion for summary judgment. Additionally, based upon the plaintiff’s failure to exchange the relevant discovery, the court did not err in issuing the conditional order. The plaintiffs’ remaining contentions are without merit. Thompson, J. P., Sullivan, Krausman and Smith, JJ., concur.