9604-9605N. EUGENE STOLOWSKI plf-ap, v. 234 EAST 178TH STREET LLC, def-res, THE CITY OF NEW YORK, def — EUGENE STOLOWSKI plf-res, v. 234 EAST 178TH STREET LLC, def-ap, THE CITY OF NEW YORK, def — Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for Eugene Stolowski, Brigid Stolowski, Eileen Bellew, Jeffrey G. Cool, Sr., Jill Cool, Joseph G. Di Bernardo and Brendan K. Cawley, appellants/res — Meyer, Suozzi, English & Klein, P.C., Garden City (Kieran X. Bastible of counsel), for Jeanette Meyran, appellant/res — Lewis Brisbois Bisgaard & Smith LLP, New York (John Sandercock of counsel), for 234 East 178th Street LLC, ap — Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for 234 East 178th Street LLC, res — Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered June 12, 2012, which denied defendant 234 East 178th Street LLC’s motion to strike plaintiffs’ note of issue or permit postnote of issue discovery, unanimously modified, on the law and the facts, the motion granted to the extent of permitting discovery on the newly asserted wrongful death claim of plaintiff DiBernardo, and otherwise affirmed, without costs. Order, same court and Justice, entered March 2, 2011, which denied plaintiffs’ motions for partial summary judgment, unanimously affirmed, without costs.
Although defendant timely moved to strike the note of issue, it had previously stipulated to waive any known discovery not raised at a compliance conference held one month prior to the making of the motion. Since defendant knew that it needed discovery concerning updated medical and special damages, but failed to seek it, it lost its entitlement to same (see Sereda v. Sounds of Cuba, Inc., 95 AD3d 651 [1st Dept 2012]). However, defendant remains entitled to all material and necessary discovery concerning the wrongful death claim of Di Bernardo, a claim not asserted until after the compliance conference (see Francescon v. Gucci Am., Inc., 71 AD3d 528 [1st Dept 2010]).
