REMARK ELECTRIC CORP v. Aetna Casualty and Surety Company, Appellant.

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

REMARK ELECTRIC CORP., Respondent, v. MANSHUL CONSTRUCTION CORP., et al., Defendants, Aetna Casualty and Surety Company, Appellant.

Decided: September 29, 1997

Before MANGANO, P.J., and COPERTINO, ALTMAN and GOLDSTEIN, JJ. Peckar & Abramson, P.C., New York City (Charles E. Williams III and Bruce W. Kahn, of counsel), for appellant. Steven G. Rubin, Mineola, for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant Aetna Casualty and Surety Company appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated February 13, 1996, which denied its motion to vacate the note of issue and to compel the plaintiff to respond to interrogatories.

ORDERED that the order is affirmed, with costs.

This action was commenced on February 1, 1994.   On August 14, 1994, the plaintiff served and filed a note of issue and Certificate of Readiness.   On January 10, 1996, the defendant Aetna Casualty and Surety Company moved to vacate the note of issue and compel the plaintiff to answer certain interrogatories which it asserted had been served on May 3, 1994.   The plaintiff denies that it ever received any interrogatories.   The Supreme Court denied the motion, and we affirm.

Under the circumstances of this case, the court providently exercised its discretion in denying the appellant's motion.   The appellant is guilty of inexcusable delay by waiting approximately 18 months before moving to vacate the note of issue, and some 20 months before seeking to compel answers to the interrogatories (see, CPLR 3124;  Uniform Rules for Trial Cts. [22 NYCRR] § 202.21[e];  Socha Bldrs. v. Town of Clifton Park, 99 A.D.2d 890, 472 N.Y.S.2d 789;  Cassidy v. Kolonsky, 37 A.D.2d 880, 325 N.Y.S.2d 145).  The appellant had ample time in which to conduct discovery (see, Simmons v. Kemble, 150 A.D.2d 986, 541 N.Y.S.2d 875;  Bycomp, Inc. v. New York Racing Assn., 116 A.D.2d 895, 498 N.Y.S.2d 274;  cf., Williams v. Long Is. Coll. Hosp., 147 A.D.2d 558, 537 N.Y.S.2d 853).


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