Darko v. New York City Transit Authority

*204OPINION OF THE COURT

Paul A. Victor, J.

Relief Sought

Defendant New York City Transit Authority (NYCTA) moves to strike the plaintiff’s note of issue for failure to provide discovery. Plaintiff cross-moves to “dismiss” the defendant’s motion, with sanctions, for failure to attempt to resolve the motion in good faith.

An Unresolved Procedural Issue

The motion and cross motion raise a point of civil procedure which has engendered diverging appellate decisions, and which appears to be unresolved in the First. Department. Does service of a CPLR 3216 demand constitute a waiver of discovery?

Facts and…