Mandart v. Small Bone Innovations, Inc.

Mandart v Small Bone Innovations, Inc. 2026 NY Slip Op 05857 October 8, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Keith Mandart, Plaintiff-Appellant, v Small Bone Innovations, Inc., Defendant-Respondent, Stryker Corporation, Defendant. Decided and Entered: October 08, 2026 Index No. 155577/17|Appeal No. 7199|Case No. 2026-00548| Before: Manzanet-Daniels, J.P., Kennedy, Friedman, Kapnick, Higgitt, JJ. Horn Appellate Group, Brooklyn (Scott T. Horn of counsel), for appellant. Goldberg Segalla LLP, White Plains (William T. O'Connell of counsel), for respondent. [*1] Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered January 8, 2026, which denied plaintiff's motion to extend the note of issue deadline, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded to the trial court to set an extended note of issue deadline. Supreme Court improvidently exercised its discretion in denying plaintiff's motion (see Grant v City of New York, 17 AD3d 215, 217 [1st Dept 2005]). Plaintiff filed his motion prior to the deadline set by the court for the filing of a note of issue. The record does not establish that defendant would have been prejudiced by an extension of the deadline; rather, defendant did not oppose the motion, and in fact argued before the trial court that it would be severely prejudiced and irreparably harmed if the extension was notgranted (see SF Consultants, LLC v 28 W. Group Corp, 244 AD3d 614, 615 [1st Dept 2025]). Moreover, plaintiff established that he had good cause for an extension of time, as he provided "plausible reason[s]" for the delay in completing discovery by the December 10, 2025 deadline (Wesco Ins. Co. v Nunez Dental Servs., P.C., 248 AD3d 462, 463 [1st Dept 2026]). Plaintiff's deposition had been promptly scheduled for February 3, 2025, but was canceled by defendant's counsel and then delayed due to an additional request by defendant for medical records and plaintiff's own medical care, including multiple surgeries. While plaintiff's deposition was eventually completed on October 29, 2025, plaintiff represented that defendant's deposition was not completed by the deadline because its counsel failed to provide his availability after plaintiff attempted to schedule the deposition at least six times. Thus, "the delays giving rise to the requested extension did not arise from willfulness in missing deadlines, but from legitimate difficulties encountered by both sides during discovery" (SF Consultants, LLC, 244 AD3d at 615). While Supreme Court should set an extended note of issue deadline upon remand, we note that plaintiff has indicated that he only needs a "short" extension. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 8, 2026