H & Y Realty Company et al., Respondents, v. Theadora Baron, Appellant, et al., Defendant

(June 12, 1986) H & Y Realty Company et al., Respondents, v Theadora Baron, Appellant, et al., Defendant. [MAJORITY] Order of the Supreme Court, New York County (Helen E. Freedman, J.), entered on or about November 1, 1985, which denied the motion by defendant-appellant Theadora Baron to strike the note of issue filed by plaintiffs H & Y Realty Company and Ralf Romeo Boutique, Inc., is unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion granted, with costs and disbursements. Special Term should have granted the motion by defendant-appellant for an order striking the note of issue filed by plaintiffs H & Y Realty Company and Ralf Romeo Boutique, Inc. (Conford Co. v Fordham Concourse Realty Assoc., 119 AD2d 526; Maloney v National Cleaning Contrs., 105 AD2d 653; Ortiz v Valdescastilla, 98 AD2d 610; Arroyo v City of New York, 86 AD2d 521). The note of issue, which was filed before the case was, in fact, ready for trial, was based upon a false statement of readiness. The record herein clearly reveals that there were outstanding discovery requests for certain depositions and documentary materials. Moreover, defendant’s attorney had advised plaintiffs’ counsel that he intended to be on vacation for a period of time and had received assurances that plaintiffs would await his return before proceeding with the matter. Yet, notwithstanding this representation, plaintiffs immediately served their note of issue following counsel’s departure. Concur — Murphy, P. J., Kupferman, Sullivan, Carro and Milonas, JJ.