Drapaniotis v. 36-08 33rd Street Corp. , 732 N.Y.S.2d 583 ( 2001 )

—In an action, inter alia, to recover damages for wrongful eviction, the defendants appeal from an order of the Supreme Court, Queens County (Glover, J.), dated January 24, 2001, which, in effect, denied that branch of their motion which was to vacate the plaintiff’s note of issue and directed that the parties submit to examinations before trial on March 28, 2001.

Ordered that the order is modified, on the law, by deleting the provision thereof which, in effect, denied that branch of the motion which was to vacate the plaintiff’s note of issue, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellants.

A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed (see, Garofalo v Mercy Hosp., 271 AD2d 642; Cromer v Yellen, 268 AD2d 381; Club Italia v Italian Fashion Trading, 268 AD2d 219). Here, the parties have, in effect, conceded that discovery in this matter has not been completed. Thus, the note of issue should be vacated. Bracken, P. J., Krausman, Luciano, Smith and Adams, JJ., concur.