WALKER v. SAFTLER SAFTLER KIRSCHNER (1997)

Supreme Court, Appellate Division, First Department, New York.

Herbert WALKER, etc., Plaintiff-Respondent, v. SAFTLER, SAFTLER & KIRSCHNER, et al., Defendants-Appellants.

Decided: February 06, 1997

Before MURPHY, P.J., and RUBIN, TOM and ANDRIAS, JJ.

Maria S. Tobia, for Plaintiff-Respondent. Craig T. Heard, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about August 21, 1996, which denied defendants' motion to vacate the note of issue, unanimously affirmed, without costs.

Although disclosure had not been completed when the note of issue was filed, the IAS court properly denied defendants' motion to vacate the note of issue since both parties, particularly defendants, had been inordinately dilatory, resulting in little disclosure having taken place over the five years that the action has been pending (Work-O-Lite Co. v. Lighting Unlimited, 198 A.D.2d 144, 145, 604 N.Y.S.2d 734; Hutchins v. Wand, 82 A.D.2d 928, 440 N.Y.S.2d 735). In addition, plaintiff, who is 82 years of age and suffering from a chronic heart condition, had previously been granted a trial preference by a different Justice aware of the status of the case. Under the circumstances, any further delay would severely prejudice him.

MEMORANDUM DECISION.

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