Colon v Yen Ru Jin

Colon v Yen Ru Jin 2007 NY Slip Op 08762 [45 AD3d 359] November 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Marcus Colon, Respondent,
v
Yen Ru Jin, Appellant.

—[*1] Cheven, Keely & Hatzis, New York City (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 AD2d 1027 [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 AD3d 218 [2005]). Concur—Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.