Pua v Lam

Pua v Lam 2017 NY Slip Op 08098 Decided on November 16, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 16, 2017
Renwick, J.P., Manzanet-Daniels, Andrias, Kern, Oing, JJ.
4985N 154527/14

[*1] Ah Bee Pua, Plaintiff-Respondent,

v

Yuen Fai M. Lam, et al., Defendants, C & H Herb Shop, Inc., Defendant-Appellant.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for appellant.

Sacco & Fillas, LLP, Astoria (Richard Schirmer of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about September 28, 2016, which denied defendant C & H Herb Shop, Inc.'s motion to, among other things, vacate the note of issue and extend its time to make summary judgment motions to 120 days following the completion of discovery, unanimously reversed, on the law, on the facts, and in the exercise of discretion, and the motion granted, with costs.

When, as in this case, statements in a certificate of readiness concerning completion of discovery are incorrect or blatantly false, a motion to strike the note of issue should be granted (see e.g. Cromer v Yellen, 268 AD2d 381 [1st Dept 2000]). Plaintiff's contention that the motion has been mooted by the completion of most discovery is based on representations concerning subsequent matters, not in the appellate record, and of which judicial notice cannot be taken (see Walker v City of New York, 46 AD3d 278 [1st Dept 2007]). In any event, plaintiff acknowledges that discovery remains outstanding.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 16, 2017

CLERK