Contona v. Godas

2019 NY Slip Op 35075

Opinion

Contona v Godas

2019 NY Slip Op 35075(U)

January 31, 2019

Supreme Court, Nassau County Docket Number: Index No. 608451/16 Judge: Denise L. Sher

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 0 RECEIVED NYSCEF: 02/19/2019

SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORK

PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice

TRIAL/IAS PART 32

ANTOINE TTE CONTONA , NASSAU COUNTY

Plaintiff, Index No.: 608451/16 Motion Seq. No.: 01

- against - Motion Date: 11/30/18

MARIA G. GODAS and JOANNE GODAS,

Defendants.

The followin& papers have been read on this motion:

Papers Numbered

Order to Show Cause, Affirmatio n and Exhibits 1 Affirmation in Opposition 2 Reply Affirmatio n 3

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendants move, pursuant to 22 NYCRR 202.2l(e), for an order striking plaintiffs Note

of Issue and Certificate of Readiness and removing this action from the trial calendar; and move

for an order staying this action pending the completion of outstanding discovery. Plaintiff

opposes the motion.

The instant action was brought to recover for personal injuries allegedly sustained by

plaintiff on March 20, 2016, when she tripped and fell on the sidewalk at defendants ' premises,

1064-B North Broadway, Massapequa, County ofNassau, State of New York.

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Plaintiff commenced the action with the filing and service of a Summons and Verified

Complaint on or about November 2, 2016. See Defendants' Affirmation in Support Exhibit A.

Issue was joined on or about December 29, 2016. See Defendants' Affirmation in Support

Exhibit B.

In support of the motion, counsel for defendants submits, in pertinent part, that, "[a]t the

November 14, 2017, compliance conference, counsel for the Plaintiff advised the attorney for

Defendants and the Court that Plaintiff was still undergoing treatment as a result of the injuries

she allegedly sustained in the accident that occurred on March 20, 2016. At that conference,

Defendants reserved the right to conduct an Independent Medical Examination (hereinafter

'IME') within forty-five (45) days of Plaintiff completing treatment.. .. On February 27, 2018, the

parties appeared for another compliance conference before Justice Sher. At the conference,

(sic) parties advised the Court that Plaintiff was still treating and that the IME has (sic) not been

conducted. Justice Sher directed Defendants to proceed with the IME notwithstanding the fact

that the Plaintiff was still undergoing treatment. On March 14, 2018, the IME of Plaintiff was

conducted. On March 20, 2018, a certification conference was held, and a certification Order was

issued directing Plaintiff to file her Note oflssue on or before August 20, 2018 .... On June 18,

2018, Plaintiff filed a Note oflssue in this action .... On or about September 23, 2018 (nearly

three (3) months after filing of the Note oflssue), counsel for Plaintiff contacted the undersigned

to advise that Plaintiff was set to undergo a second surgery on her foot which was scheduled to

take place on October 25, 2018. Moreover, on or about November 3, 2018, counsel for Plaintiff

contacted the undersigned to advise that Plaintiff did not undergo a surgery on October 25, 2018,

and it was re-scheduled to December. We expect that additional medical records will be required

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to be processed, as well as a supplemental deposition and IME of the Plaintiff in order to

determine what additional treatment she has received. It is expected that the parties will not be

able to proceed with the supplemental deposition and IME of the Plaintiff until such time as she

firmly concludes treatment.. .. As Plaintiff still continues to undergo treatment in connection with

the injuries allegedly sustained as a result ofher alleged March 20, 2016 accident, there is

outstanding discovery which prevents this action from proceeding to trial as Defendants are

entitled to an opportunity to prepare an appropriate defense of this matter, require an opportunity

to conduct a supplemental deposition, and require a supplemental IME of the Plaintiff." See

Defendants' Affirmation in Support Exhibits A-F.

Counsel for defendants adds that, "[i]n the case at hand, Plaintiff filed a Note oflssue on

or about June 18, 2018 attesting that the case was ready for trial.. .. However, at the time of the

filing of the Note of Issue Plaintiff was still continuing treatment and as a result, Plaintiff was

scheduled to undergo an additional surgery on October 25, 2018. Knowing that Plaintiff was still

treating and that additional discovery would be required, Plaintiff still proceeded to file the Note

oflssue and in (sic) the Certificate of Readiness indicating that the case is ready for trial. Since

additional items of discovery remain outstanding, the Note oflssue should be vacated in order for

Defendants to complete discovery, as proceeding to trial will cause prejudice to the Defendants

in preparing an adequate defense in this matter." See Defendants' Affirmation in Support Exhibit

F.

In opposition to the motion, counsel for plaintiff submits, in pertinent part, that,

"[d]efendants' 'Affirmation in Support' accurately sets forth that plaintiff is still undergoing

treatment to the left foot, for injuries claimed to be related to incident which is the subject of this

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litigation. Defendants further accurately set forth that I contacted counsel for defendants on or

about September of2018 with respect to discussing plaintiffs plans for surgery, at that time

anticipated to be performed on October 25, 2018. That anticipated date for surgery was canceled

due to, upon information and belief, discovery of deep vein thrombosis within plaintiffs leg.

Thereafter, I contacted counsel for defendants to inform them that the surgery was being

rescheduled and was anticipated for some time in December. Upon information and belief, no

dates were available for the procedure in December and the procedure has been tentatively

scheduled for February 5, 2019. That February date has not yet been confirmed to plaintiff by all

of the medical providers necessary to move forward with the procedure. As a preliminary matter,

in the event the plaintiff undergoes the anticipated surgery, plaintiff does not have any objection

to consenting to a further deposition, limited to new treatment and matters not previously covered

at her previous examination. Furthermore, and in the event plaintiff undergoes the anticipated

surgery, plaintiff has no objection to consenting to a further defense medical examination. Should

plaintiff undergo the anticipated surgery, plaintiff would respectfully leave it to the Court to

decide whether the additional discovery could not be performed expeditiously without the need

for vacating plaintiffs Note oflssue. However, the defendant's motion is respectfully premature.

Plaintiff has not in fact undergone the aforementioned surgical procedure as of the date of this

Order to Show Cause, and thus there is no compelling reason at this time to vacate plaintiffs

Note oflssue and Certificate of Readiness. The defendants' entitlement to additional items of

outstanding discovery, as outlined within the defendants' 'Affirmation in Support', are

anticipated and hypothetical at the present time, warranting denial of their motion."

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FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

A Note ofl ssu e may be vacated pur suant to Ne w York Court Ru les § 202 .21(e) if the

following circumstances are presen t:

Within 20 days after service of a not e of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upo n affidavit showing in what respects the case is not ready for tria l, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in any material respect. ... After such period, ... no suc h motion shall be allowed except for good cause shown. At any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is inc orrect, or that the certificate of readiness fails to comply with the req uirements of this section in some material respect.

That is, a timely motion to vacate the Note ofl ssu e pursuant to 22 NY CR R § 202.21(e)

need only demonstrate in what resp ects the case is not ready for trial. See Mosley v. Flavius, 13

A.D.3d 346, 785 N.Y.S.2d 742 (2d Dept. 2004); Audiovox Corp. v. Ben yam ini 265 A.D.2d 135, 707 N.Y.S.2d 137 (2d Dept. 2000).

However, if the party seeking discove ry moves to compel

such discovery after the twenty (20 ) day period provided by 22 NY CR R 202.21(e) has expired,

the more stringent standard under 22 NY CR R 202.21 (d) requiring the mo vant to demonstrate

unusual or unanticipated circumstan ces and substantial prejudice must be met.

In the instant matter, defendants' mo tion to vacate the Note ofl ssu e was not made within

twenty (20) days after service of the Note ofl ssu e and Certificate of Rea diness. However, the

Court finds that defendants have dem onstrated unanticipated circumstan ces and substantial

prejudice in support of their reques t to vacate the Note of Issue. The Cou rt notes that the instant matter is currently calendared before the Central Jury Part on February 19, 2019. Defendants

would be prejudiced if ordered to pro ceed to jury selection on said date wit hout having the

discovery detailed above if pla inti ff does indeed have the additional surg ery.

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FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019 "'

NYC RR 202.2 1(e), for an Accordi11:gly, the branch of defendants' motion, pursuant to 22

ness and striking this action from order vacating plaint iff's Note of Issue and Certificate of Readi

the trial calendar, is hereby GRANTED. And it is further t matter by April 1, 2019.

ORDERED that plaint iff shall file a Note oflssu e in the instan

April 1, 2019, there still remains A Copy of this Order must accompany the Note oflssu e. If, by iff, counsel for the parties are outstanding discovery pertaining to an additional surgery for plaint

advised to contact Chambers with respect to same.

pending the completion

The branch of defendants' motion for an order staying this action

of outstanding discovery, is hereby DENIED.

This constitutes the Decision and Order of this Court.

Dated: Mineola, New York

January 31, 2019 ENTERED FEB l \ 20\S NASSAU c()UN'fY COUNTY CLERK'S OfFICE

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