Summers v. Kardex Systems, Inc.

Full title: RICHARD SUMMERS, Respondent, v. KARDEX SYSTEMS, INC., Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 5, 1994

210 A.D.2d 216 (N.Y. App. Div. 1994)

619 N.Y.S.2d 963

Opinion

December 5, 1994

Appeal from the Supreme Court, Westchester County (Wood, J.).

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the defendant's motion to enlarge its time to renew its motion to dismiss the complaint.

We find that the Supreme Court improvidently exercised its discretion in sua sponte ordering this matter ready for trial and by directing the defendant to file a note of issue and certificate of readiness, in light of the fact that discovery was incomplete (see, 22 NYCRR 202.21 [b], [c]; Barnett v DeMian, 207 A.D.2d 693; Carte v Segall, 134 A.D.2d 396). We note that at the time the Supreme Court ordered this matter ready for trial the defendant had a pending motion to enlarge its time to renew a motion to dismiss the complaint. Thus, we are remitting this matter to the Supreme Court so that it may decide the defendant's motion. Sullivan, J.P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.