Martin N. Barnett, Respondent, v. L. David DeMian et al., Appellants

Martin N. Barnett, Respondent, v L. David DeMian et al., Appellants. [616 NYS2d 491] [MAJORITY] —Order of the Supreme Court, New York County (Martin B. Stecher, J.), entered on February 14, 1994, which, inter alia, denied defendants’ motion to strike plaintiff’s note of issue, is unanimously modified, on the law and the facts, and in the exercise of discretion, to the extent of reversing the denial of defendants’ motion to strike the note of issue, and the motion is granted, without costs. The court abused its discretion in denying the motion to strike plaintiff’s note of issue and statement of readiness inasmuch as the statement of readiness incorrectly states that all necessary discovery had been completed or waived (see, Savino v Lewittes, 160 AD2d 176). It is conceded that the deposition of plaintiff by defendant has not been taken. Plaintiff filed the note of issue five weeks before the expiration of the court-ordered deadline to take plaintiff’s deposition. Under these circumstances, denial of the motion is an abuse of discretion. Concur—Murphy, P. J., Rosenberger, Ross, Rubin and Williams, JJ.