HOCHBERG v. MAIMONIDES MEDICAL CENTER (2007)

In an action to recover damages for medical malpractice, the defendant appeals from so much of an order of the Supreme Court, Kings County (Silverman, J.), dated July 11, 2006, as, in effect, denied its cross motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 In response to a 90-day notice served by the defendant pursuant to CPLR 3216, the plaintiff filed a timely note of issue.   However, the note of issue was a nullity because the certificate of readiness and affirmation of compliance filed therewith incorrectly stated that discovery was complete (see Blackwell v. Long Is. Coll. Hosp., 303 A.D.2d 615, 616, 756 N.Y.S.2d 769;  Gregory v. Ford Motor Credit Co., 298 A.D.2d 496, 497, 748 N.Y.S.2d 507;  Macancela v. Pekurar, 286 A.D.2d 320, 321, 728 N.Y.S.2d 700).   Nonetheless, under the circumstances of this case, the court providently exercised its discretion in denying the defendant's motion to dismiss and setting an expedited discovery schedule (see CPLR 3216;  Ferrara v. N.Y. & Atl. Ry. Co., 25 A.D.3d 753, 808 N.Y.S.2d 761;  Betty v. City of New York, 12 A.D.3d 472, 473, 784 N.Y.S.2d 621;  Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568;  Tu Ying Chen v. Nash, 266 A.D.2d 279, 698 N.Y.S.2d 511;  Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 548, 690 N.Y.S.2d 643).