Blinds To Go (U.S.), Inc. v Times Plaza Dev., L.P.

Blinds To Go (U.S.), Inc. v Times Plaza Dev., L.P. 2013 NY Slip Op 07703 Decided on November 20, 2013 Appellate Division, Second 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 20, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
PETER B. SKELOS
CHERYL E. CHAMBERS
L. PRISCILLA HALL, JJ.
2012-02896
(Index No. 41932/03)

[*1]Blinds To Go (U.S.), Inc., respondent,

v

Times Plaza Development, L.P., appellant.




Kenneth J. Glassman, New York, N.Y. (Ross M. Eisenberg of
counsel), for appellant.
Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale,
N.Y. (Richard Gabriele of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for breach of a lease, the defendant appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated February 24, 2012, which denied its motion to vacate the note of issue and to compel additional discovery.

ORDERED that the order is affirmed, with costs.

Where additional discovery is sought more than 20 days after the filing of the note of issue, the moving party must demonstrate unusual or unanticipated circumstances and substantial prejudice absent the additional discovery (see Tirado v Miller, 75 AD3d 153, 157; Audiovox Corp. v Benyamini, 265 AD2d 135, 138). Here, the defendant failed to establish any discrepancy between the testimony of certain witnesses who testified for the plaintiff at a prior trial (see Blinds to Go [U.S.], Inc. v Times Plaza Dev., L.P., 88 AD3d 838), and that of an employee of the plaintiff who subsequently testified in an unrelated action in federal court. Therefore, the defendant failed to demonstrate any unusual or unanticipated circumstances so as to warrant vacating the note of issue and ordering additional discovery (see Audiovox Corp. v Benyamini, 265 AD2d at 140). Nor did the defendant make a showing of special circumstances so as to entitle it to depose the plaintiff's expert (see Rivers v Birnbaum, 102 AD3d 26, 38 n 6).

The defendant's remaining contentions are not properly before this Court.
RIVERA, J.P., SKELOS, CHAMBERS and HALL, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court