ROSENBERG ESTIS v. BERGOS (2005)

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

ROSENBERG & ESTIS, P.C., Plaintiff-Respondent, v. Michael BERGOS, et al., Defendants-Appellants.

Decided: May 03, 2005

TOM, J.P., SAXE, FRIEDMAN, MARLOW, CATTERSON, JJ.

Cohen Tauber Spievack & Wagner LLP, New York (Leo L. Esses of counsel), for appellants. Rosenberg & Estis, P.C., New York (Howard W. Kingsley of counsel), for respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 8, 2004, which denied defendants' motion to vacate the note of issue, unanimously affirmed, without costs.

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff's deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants' motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v. 147 Corp., 309 A.D.2d 647, 648, 767 N.Y.S.2d 1 [2003]; Ortiz v. Arias, 285 A.D.2d 390, 727 N.Y.S.2d 879 [2001] ).

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