Hogerman v. Monroe

Order unanimously reversed, without costs, and motion granted. Memorandum: This action was commenced on June I, 1983 to recover child support allegedly due plaintiffs based upon a separation agreement executed in 1964. Plaintiffs filed a note of issue containing a statement of readiness on August 10,1983. The case first appeared on the Trial Calendar on December 5, 1983 and the following day defendant moved to strike the note of issue and statement of readiness. Special Term erred in denying the motion. 11 Although plaintiffs waited almost 20 years to commence this action, it was placed on the Trial Calendar only a few months after it was commenced. During this brief period, defendant substituted counsel who attempted to settle the matter and after the failure of settlement negotiations advised plaintiffs that he had meritorious affirmative defenses to this action, which included the Statute of Limitations and lack of privity. Moreover, no meaningful discovery had been conducted despite the fact that the financial resources of the parties will be a key issue at trial. Thus, defendant has spelled out special circumstances which justify his request for discretionary relief and his motion should have been granted (see 22 NYCRR 1024.4; Cooper v Swallow, 55 AD2d 752 ; cf. Giddens v Moultrie, 66 AD2d 993 ). (Appeal from order of Supreme Court, Monroe County, Kennedy, J. — strike note of issue.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.