Kenney v Essex Mgt. Co. (2024 NY Slip Op 01871)
Kenney v Essex Mgt. Co.
2024 NY Slip Op 01871
Decided on April 04, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: April 04, 2024 Before: Kern, J.P., Singh, González, Pitt-Burke, Rosado, JJ.
Index No. 652309/22 Appeal No. 1996-1996A Case No. 2023-04990, 2023-04992
[*1]Carol Kenney etc., Plaintiff-Appellant,
v
Essex Management Company, Defendant-Respondent, The Water Company, LLC, Nominal Defendant-Respondent.
Carter Ledyard & Milburn LLP, New York (Stephen M. Plotnick of counsel), for appellant.
Augello Law Group, P.C., New York (Cynthia A. Augello of counsel), for respondent.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about September 27, 2023, which denied plaintiff's motion to extend the deadline to file the note of issue for 30 days, unanimously affirmed, without costs. Appeal from conference order, same court and Justice, entered on or about September 27, 2023, unanimously dismissed, without costs, as academic.
Supreme Court did not improvidently exercise its discretion in denying plaintiff's unopposed motion to extend the time to file a note of issue by 30 days (see Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]). Although plaintiff explained that the parties had not completed discovery because they reached a tentative settlement, the final scheduling order plainly stated that there would be "no stay of discovery pending motion practice, settlement proceedings, or ADR," and that depositions and other discovery would be "automatically waived and precluded" if not completed by the deadlines set in the order (see IO Experience Design LLC v C & A Mktg. Inc., 220 AD3d 444 [1st Dept 2023]; Perez De Sanchez v Trevz Trucking LLC, 124 AD3d 527, 527-528 [1st Dept 2015]). Accordingly, discovery had been waived and precluded before the motion was made.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 4, 2024
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