Laudisio v. Diamond D Construction Corp.

Order insofar as appealed from unanimously reversed on the law without costa and cross motion denied. Memorandum: Defendant contends that Supreme Court erred in granting the alternative request in plaintiffs’ cross motion for an order compelling further discovery on the issue of the workers’ compensation defense asserted by defendant. We agree. Plaintiffs commenced this action in June 1992, and defendant raised the workers’ compensation issue as an affirmative defense in its answer. Plaintiffs filed the note of issue and statement of readiness in September 1995, more than four years before their instant cross motion. “[A]bsent special, unusual or extraordinary circumstances spelled out factually, the motion court lacks discretion to permit further discovery after the note of issue and statement of readiness have been filed” (Gould v Marone, 197 AD2d 862; see, 10 Park Sq. Assocs. v The Travelers, 266 AD2d 859; Melanson v Caggiano, 251 AD2d 1059). Plaintiffs failed to explain their failure to seek such discovery before the filing of the note of issue (see, Audiovox Corp. v Benyamini, 265 AD2d 135, 140). (Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Discovery.) Present — Hayes, J. P., Wisner, Scudder, Kehoe and Burns, JJ.