BROADWAY ASSOCIATES HOLDINGS LLC v. FOUNDATIONS GROUP INC (2024)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 7, 2023, which denied defendant's motion to extend the deadline for filing the note of issue, unanimously affirmed.  Order, same court and Justice, entered on or about July 24, 2023, which denied defendant's motion to vacate the note of issue, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying defendant's motion for a further extension of the deadline for filing the note of issue, taking into account the length of time the action had been pending, the multiple extensions that had already been granted, and the need to avoid undue delay (see Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 747, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000];  First Equity Realty v. Harmony Group, II, 187 A.D.3d 458, 458, 129 N.Y.S.3d 777 [1st Dept. 2020];  Don Buchwald & Assoc. v. Marber–Rich, 305 A.D.2d 338, 338, 761 N.Y.S.2d 617 [1st Dept. 2003]).  Notably, after this Court granted the parties an additional 60 days to complete discovery (361 Broadway Assoc. Holdings, LLC v. Foundations Group I, Inc., 210 A.D.3d 548, 176 N.Y.S.3d 776 [1st Dept. 2022]), the motion court granted another extension of about five months to complete discovery and file the note of issue.  Although the motion court's order marked that deadline as “final” and stated that no further extensions would be granted without a showing that “formal efforts” had been made to compel outstanding discovery from third parties, defendant canceled a scheduled deposition of third-party witnesses and did not move to compel discovery from them.

As to the motion to vacate the note of issue, defendant failed to show that any unusual or unanticipated circumstances requiring additional discovery developed after the filing of the note of issue (see 22 NYCRR 202.21[d]).

We have considered defendant's remaining contentions and find them unavailing.