Board of Mgrs. of the Diplomat Condominium v Preston Taylor Projects, LLC

[*1] Board of Mgrs. of the Diplomat Condominium v Preston Taylor Projects, LLC 2014 NY Slip Op 50387(U) Decided on March 19, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
13-398/399.

The Board of Managers of the Diplomat Condominium, Plaintiff-Respondent, - -

against

Preston Taylor Projects, LLC, Defendant-Appellant, -and- The City of New York and the State of New York, Defendants.

Defendant Preston Taylor Projects, LLC appeals from (1) an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.), dated March 8, 2013, which denied its motion to strike the notice of trial, and (2) an order (same court and Judge), dated April 29, 2013, which denied its motion to reargue the aforesaid order and to strike the notice of trial dated March 18, 2013.

Per Curiam.

Orders (Nancy M. Bannon, J.), dated, respectively, March 8, 2013 and April 29, 2013, insofar as appealable, affirmed, with one bill of $10 costs, for the reasons stated by Nancy M. Bannon, J. at Civil Court.

The underlying January 2013 motion brought by defendant-appellant, denominated as one to strike a notice of trial, was properly denied, as academic, inasmuch as no notice of trial had in fact been filed at that juncture, with the case then remaining on the court's pre-note calendar. Nor was defendant's motion to reargue the initial motion a proper vehicle to strike the subsequent (April 22, 2013) notice of trial filed by plaintiff (see Simpson v Loehmann, 21 NY2d 990 [1968]; Fox v Abe Schrader Corp., 36 AD2d 591 [1971]). Moreover, defendant's vague assertion that discovery is incomplete is insufficient to establish that "the action is not entitled to be on the trial calendar" (22 NYCRR 208.17[c]), particularly given the prior unappealed order setting a July 24, 2012 deadline for plaintiff to comply with discovery or face a potential motion by defendant "for preclusion at trial." [*2] THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014