Gardner v. Rockland Lake Caterers, Inc.

— Appeal by plaintiff from so much of an order of the Supreme Court, Rockland County, entered October 21, 1980, as granted defendant’s motion to amend its answer in order to add an affirmative defense. Order modified by adding thereto a provision granting plaintiff leave to conduct disclosure solely with respect to the new affirmative defense. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff. The amended answer in the form annexed to defendant’s motion papers is deemed served. The disclosure shall be completed by plaintiff within 60 days of service upon him of a copy of the order to be made hereon, with notice of entry. The trial of this action shall be stayed until plaintiff has completed the discovery permitted herein or until the aforesaid 60-day period has expired, whichever occurs first. Special Term did not abuse its discretion in granting defendant leave to amend its answer. However, since Special Term declined to strike the action from the Trial Calendar, it should *632 have granted plaintiff leave to conduct discovery with respect to the new affirmative defense asserted in the amended answer. Plaintiff is entitled to such discovery, which would otherwise be barred by the filing of the note of issue and statement of readiness (see 22 NYCRR Part 675). Margett, J.P., O’Connor, Weinstein and Thompson, JJ., concur.