BRIARPATCH LIMITED v. Verner Simon P.C., et al., Defendants-Respondents-Appellants. (2009)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered August 20, 2009, as amended September 24, 2009, which marked plaintiffs' discovery motion and the cross motion of defendants Verner Simon P.C. and Paul W. Verner off calendar with leave to renew, and denied plaintiffs' motion to reassign this case to Justice Bransten, unanimously modified, on the law, to the extent of remanding the matter as indicated herein, and otherwise affirmed, without costs.

The Rules of the Commercial Division (22 NYCRR 202.70[g], Rule 24) provide for a pre-motion conference to be held in nondiscovery disputes. The motion court's part rule states that “[d]iscovery disputes should first be addressed through a court conference prior to the filing of a motion.” Both rules further provide that a party's failure to comply may result in the motion being held in abeyance until the court has the opportunity to conference the matter. Neither side requested a pre-motion conference prior to filing the motion and the cross motion. Based on this procedural failure, the court marked both the motion and the cross motion off calendar with leave to renew after plaintiffs' compliance with the rules.¹ Rather than marking the motions off calendar, the motion court should have scheduled a conference and then decided the motions if the conference did not resolve the parties' disputes (see generally Costigan & Co. v. Costigan, 304 A.D.2d 464, 758 N.Y.S.2d 312 [2003] ). Although the parties have briefed the merits on this appeal, the motion court never ruled on the issues presented in the motion or the cross motion. Accordingly, the matter is remanded for the court to hold whatever conference it deems appropriate and, if any such conference does not resolve the disputes, to decide the discovery motion and the cross motion (see Barrett v. Toroyan, 35 A.D.3d 278, 826 N.Y.S.2d 566 [2006] ).

The court did not improvidently exercise its discretion by refusing to transfer this case to Justice Bransten. The action before Justice Bransten (Briarpatch Ltd., L.P. v. Geisler, Index No. 603820/99) has no active defendants, and the instant case has been before the current Justice since 2007.

FOOTNOTES

1.  Although the court's order does not specifically reference the cross motion, it is apparent that the order covered both the motion and the cross motion.