COLON v. YEN RU JIN (2007)

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

Marcus COLON, Plaintiff-Respondent, v. YEN RU JIN, Defendant-Appellant.

Decided: November 13, 2007

SAXE, J.P., FRIEDMAN, SWEENY, McGUIRE, MALONE, JJ.

Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for appellant. Mansour, Winn, Kurland & Warner, LLP, Lake Success (Stephen G. Winn of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 17, 2006, which denied defendant's motion to vacate the note of issue, unanimously affirmed, without costs.

Defendant failed to demonstrate any unusual or unanticipated circumstances warranting vacatur of the note of issue more than three months after it was served on him (see 22 NYCRR 202.21[d], [e] ). A lack of diligence in seeking discovery does not constitute such circumstances (Marks v. Morrison, 275 A.D.2d 1027, 714 N.Y.S.2d 167 [2000] ). The record discloses that defendant failed to avail himself of several opportunities to conduct plaintiff's deposition and medical examination prior to the deadline set forth in the court's compliance conference order, thereby waiving any right he had to additional discovery (see Rosenberg & Estis, P.C. v. Bergos, 18 A.D.3d 218, 794 N.Y.S.2d 341 [2005] ).

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