Jenkins v Riverbay Corp.
2020 NY Slip Op 05814 [187 AD3d 543]
October 15, 2020
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 2, 2020


[*1]
 Russell Jenkins, Respondent,
v
Riverbay Corporation, Appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Patrick J. Lawless of counsel), for appellant.

Burns & Harris, New York (Jason Steinberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered March 18, 2020, which denied defendant's motion to compel plaintiff to provide certain medical record authorizations for trial purposes, unanimously affirmed, without costs.

Defendant made no showing that unusual or unanticipated circumstances had developed after the note of issue was filed which required additional pretrial proceedings so as to avoid substantial prejudice (see 22 NYCRR 202.21 [d]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2d Dept 2000]). Rather, the record is clear that "[a]ny outstanding discovery is due to defendant['s] own inaction" (Allen v Hiraldo, 144 AD3d 434, 435 [1st Dept 2016]). Accordingly, defendant's motion was properly denied. Insofar as plaintiff has been granted a trial preference based on his advanced age (CPLR 3403 [a] [4]), the matter should proceed to trial without undue delay. Concur—Manzanet-Daniels, J.P., Mazzarelli, Moulton, Kennedy, JJ.