BARNETT v. DEMIAN

The court abused its discretion in denying the motion to strike plaintiff's note of issue and statement of readiness inasmuch as the statement of readiness incorrectly states that all necessary discovery had been completed or waived (see, Savino v. Lewittes, 160 A.D.2d 176).

It is conceded that the deposition of plaintiff by defendant has not been taken. Plaintiff filed the note of issue five weeks before the expiration of the court-ordered deadline to take plaintiff's deposition. Under these circumstances, denial of the motion is an abuse of discretion.

Concur — Murphy, P.J., Rosenberger, Ross, Rubin and Williams, JJ.