Jordan v BBP St Owner, LLC 2024 NY Slip Op 31946(U) June 5, 2024 Supreme Court, New York County Docket Number: Index No. 158867/2017 Judge: Sabrina Kraus 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. INDEX NO. 158867/2017 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 06/05/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 158867/2017 CHRISTOPHER JORDAN, 04/18/2024, Plaintiff, MOTION DATE 05/03/2024
- V - MOTION SEQ. NO. _ _0_0_9_0_1_0__
BBP ST OWNER, LLC, QUICK PARK PCVST GARAGE LLC,PRECISION TIME SYSTEMS, INC. D/B/A PRECISION TECHNOLOGY SOLUTIONS, INC.,FAAC DECISION + ORDER ON INTERNATIONAL, INC., MOTION
Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 009) 284, 285, 286, 287, 288,310,311,312,313,314,315,316,317,318,320,321,322 were read on this motion to/for TRIAL PREFERENCE
The following e-filed documents, listed by NYSCEF document number (Motion 010) 292, 293, 294, 295, 296,297,298,299,300,301,302,303,304,305,306,307,308,309,323,324 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR
BACKGROUND
Plaintiff commenced this action seeking damages for personal injuries he suffered on
January 8, 2017, when he was struck in the head by a gate to a parking garage in Stuyvesant
Town.
By decision and order dated March 19, 2024, the Court ordered, in relevant part, for
plaintiff to provide BPP and Quick with an authorization to obtain to obtain Plaintiffs treatment
records with licensed clinical social worker Jamie Greenfield.
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PENDING MOTIONS
On April 1, 2024, Plaintiff moved for an order pursuant to CPLR section 3403(a)(3)
granting him trial preference (mot. seq. 9).
On April 11, 2024, Defendants BPP St. Owner, LLC ("BPP") and Quick Park PCVST
Garage LLC ("Quick") moved for and order: pursuant to 22 NYCRR § 202.21(e) vacating the
Note oflssue and Certificate of Readiness for Trial; and striking this matter from the trial
calendar; and pursuant to CPLR § 3126, precluding Plaintiff from offering evidence regarding
any alleged personal injuries for failure to provide discovery; and extending the date for
Defendants to file summary judgement motions beyond the previously set date of July 31, 2024
(Mot. seq. 10).
The motions are consolidated herein and determined as set forth below.
DISCUSSION
BPP and Quick's Motion to Vacate the Note of Issue
BPP and Quick seek to vacate the note of issue, contending that they have not been
provided with the Greenfield authorizations as ordered by the Court, that those records are
necessary for their neuropsychologist to review and include in his report, and that additional
IME' s are contingent on that report. Additionally, they note that there are four non-party
witnesses that have yet to be deposed.
In opposition, Plaintiff contends that it provided the Greenfield authorizations shortly
after BPP and Quick filed the within motion, in full compliance with the court's order. Plaintiff
argues that Defendants can schedule their IME' s at any time, as Plaintiff's deposition was
completed in 2021, and that the IME's and non-party depositions can go forward post-note of
issue while the case remains on the trial calendar. Plaintiff argues that as BPP and Quick offer no
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evidence or argument in support of their requests to preclude Plaintiff from offering evidence, or
extending the time to file summary judgment motions, the Court should not grant such relief.
Plaintiff also contends that BPP and Quick' s affirmation of good faith is insufficient.
"Trial courts are authorized, as a matter of discretion, to permit post-note of issue
discovery without vacating the note of issue, so long as neither party will be prejudiced."
Cabrera v Abaev, 150 AD3d 588 (1st Dept 2017), quoting Cuprill v Citywide Towing and Auto
Repair Services, 149 AD3d 442 (1st Dept.2017).
As Plaintiff asserts he has fully complied with the Court's order to provide the Greenfield
authorizations, and as BPP and Quick submit no reply, that fact is deemed admitted.
Additionally, as Plaintiff expresses willingness to allow non-party depositions and additional
IME' s to be conducted post-note, there is no prejudice to any party in allowing post-note
discovery without vacating the note of issue.
As BPP and Quick set forth no arguments in support of their request to preclude Plaintiff
from offering evidence, that portion of their motion is denied. To allow time for the processing
of the recently provided authorizations, and to conduct the additional discovery sought, the Court
will extend the deadline to file dispositive motions to 90 days from the date of this order.
Plaintiffs Motion for a Trial Preference
Plaintiff seeks trial preference because he has been diagnosed with a life-threatening
illness, and contends that due to the condition he is immunocompromised.
In opposition, BPP and Quick arguing that Plaintiff fails to state a proper basis for a trial
preference. They contend that Plaintiff is at no risk of imminent death as his diagnoses was made
in 1996, and that the condition has been effectively managed since that time. They note that
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Plaintiff has and continues to use public transit despite the presence of the pandemic, and that
Plaintiff fails to allege or provide evidence that his condition has worsened.
CPLR §3403(a)(3) provides that trial preference shall be granted in "an action in which
the interests of justice will be served by an early trial." The plaintiff bears the burden of
establishing entitlement to a special trial preference, "and the application may not be lightly
granted." Meyers v City of New York, 7 AD2d 903 (1st Dept 1959); see Roman v Sullivan
Paramedicine, Inc., 101 AD3d 443 (1st Dept 2012). "Whether the interests of justice will be
served by the granting of a preference rests within the discretion of Trial [Court]." Nold v City of
Troy, 94 AD2d 930 (3d Dept 1983); see Shomron ex rel. R&L Realty Assoc. v Fuks, 26 AD3d
304 (2006). 1
Here, Plaintiff has failed to meet his burden of demonstrating entitlement to a trial
preference. A probability of plaintiffs death before trial has been recognized as a sufficient basis
to for a trial preference. See Rago v Nationwide Ins. Co., 120 AD2d 579 (2d Dept 1986).
However, Plaintiff fails to allege, or provide evidence for such probability, especially in light of
the fact that he has lived with his condition for nearly 30 years. cf Sanfilippo v Carrington 's of
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Jordan v BBP St Owner, LLC 2024 NY Slip Op 31946(U) June 5, 2024 Supreme Court, New York County Docket Number: Index No. 158867/2017 Judge: Sabrina Kraus 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. INDEX NO. 158867/2017 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 06/05/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 158867/2017 CHRISTOPHER JORDAN, 04/18/2024, Plaintiff, MOTION DATE 05/03/2024
- V - MOTION SEQ. NO. _ _0_0_9_0_1_0__
BBP ST OWNER, LLC, QUICK PARK PCVST GARAGE LLC,PRECISION TIME SYSTEMS, INC. D/B/A PRECISION TECHNOLOGY SOLUTIONS, INC.,FAAC DECISION + ORDER ON INTERNATIONAL, INC., MOTION
Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 009) 284, 285, 286, 287, 288,310,311,312,313,314,315,316,317,318,320,321,322 were read on this motion to/for TRIAL PREFERENCE
The following e-filed documents, listed by NYSCEF document number (Motion 010) 292, 293, 294, 295, 296,297,298,299,300,301,302,303,304,305,306,307,308,309,323,324 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR
BACKGROUND
Plaintiff commenced this action seeking damages for personal injuries he suffered on
January 8, 2017, when he was struck in the head by a gate to a parking garage in Stuyvesant
Town.
By decision and order dated March 19, 2024, the Court ordered, in relevant part, for
plaintiff to provide BPP and Quick with an authorization to obtain to obtain Plaintiffs treatment
records with licensed clinical social worker Jamie Greenfield.
158867/2017 JORDAN, CHRISTOPHER vs. BBP STREET OWNER, LLC Page 1 of 5 Motion No. 009 01 O
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PENDING MOTIONS
On April 1, 2024, Plaintiff moved for an order pursuant to CPLR section 3403(a)(3)
granting him trial preference (mot. seq. 9).
On April 11, 2024, Defendants BPP St. Owner, LLC ("BPP") and Quick Park PCVST
Garage LLC ("Quick") moved for and order: pursuant to 22 NYCRR § 202.21(e) vacating the
Note oflssue and Certificate of Readiness for Trial; and striking this matter from the trial
calendar; and pursuant to CPLR § 3126, precluding Plaintiff from offering evidence regarding
any alleged personal injuries for failure to provide discovery; and extending the date for
Defendants to file summary judgement motions beyond the previously set date of July 31, 2024
(Mot. seq. 10).
The motions are consolidated herein and determined as set forth below.
DISCUSSION
BPP and Quick's Motion to Vacate the Note of Issue
BPP and Quick seek to vacate the note of issue, contending that they have not been
provided with the Greenfield authorizations as ordered by the Court, that those records are
necessary for their neuropsychologist to review and include in his report, and that additional
IME' s are contingent on that report. Additionally, they note that there are four non-party
witnesses that have yet to be deposed.
In opposition, Plaintiff contends that it provided the Greenfield authorizations shortly
after BPP and Quick filed the within motion, in full compliance with the court's order. Plaintiff
argues that Defendants can schedule their IME' s at any time, as Plaintiff's deposition was
completed in 2021, and that the IME's and non-party depositions can go forward post-note of
issue while the case remains on the trial calendar. Plaintiff argues that as BPP and Quick offer no
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evidence or argument in support of their requests to preclude Plaintiff from offering evidence, or
extending the time to file summary judgment motions, the Court should not grant such relief.
Plaintiff also contends that BPP and Quick' s affirmation of good faith is insufficient.
"Trial courts are authorized, as a matter of discretion, to permit post-note of issue
discovery without vacating the note of issue, so long as neither party will be prejudiced."
Cabrera v Abaev, 150 AD3d 588 (1st Dept 2017), quoting Cuprill v Citywide Towing and Auto
Repair Services, 149 AD3d 442 (1st Dept.2017).
As Plaintiff asserts he has fully complied with the Court's order to provide the Greenfield
authorizations, and as BPP and Quick submit no reply, that fact is deemed admitted.
Additionally, as Plaintiff expresses willingness to allow non-party depositions and additional
IME' s to be conducted post-note, there is no prejudice to any party in allowing post-note
discovery without vacating the note of issue.
As BPP and Quick set forth no arguments in support of their request to preclude Plaintiff
from offering evidence, that portion of their motion is denied. To allow time for the processing
of the recently provided authorizations, and to conduct the additional discovery sought, the Court
will extend the deadline to file dispositive motions to 90 days from the date of this order.
Plaintiffs Motion for a Trial Preference
Plaintiff seeks trial preference because he has been diagnosed with a life-threatening
illness, and contends that due to the condition he is immunocompromised.
In opposition, BPP and Quick arguing that Plaintiff fails to state a proper basis for a trial
preference. They contend that Plaintiff is at no risk of imminent death as his diagnoses was made
in 1996, and that the condition has been effectively managed since that time. They note that
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Plaintiff has and continues to use public transit despite the presence of the pandemic, and that
Plaintiff fails to allege or provide evidence that his condition has worsened.
CPLR §3403(a)(3) provides that trial preference shall be granted in "an action in which
the interests of justice will be served by an early trial." The plaintiff bears the burden of
establishing entitlement to a special trial preference, "and the application may not be lightly
granted." Meyers v City of New York, 7 AD2d 903 (1st Dept 1959); see Roman v Sullivan
Paramedicine, Inc., 101 AD3d 443 (1st Dept 2012). "Whether the interests of justice will be
served by the granting of a preference rests within the discretion of Trial [Court]." Nold v City of
Troy, 94 AD2d 930 (3d Dept 1983); see Shomron ex rel. R&L Realty Assoc. v Fuks, 26 AD3d
304 (2006). 1
Here, Plaintiff has failed to meet his burden of demonstrating entitlement to a trial
preference. A probability of plaintiffs death before trial has been recognized as a sufficient basis
to for a trial preference. See Rago v Nationwide Ins. Co., 120 AD2d 579 (2d Dept 1986).
However, Plaintiff fails to allege, or provide evidence for such probability, especially in light of
the fact that he has lived with his condition for nearly 30 years. cf Sanfilippo v Carrington 's of
Melville, 158 Misc.2d 630 (Supr Ct, Suffolk County 1993) (plaintiff granted trial preference
where physician stated he was in imminent danger of death); Schneider v Flowers, 13 7 Misc.2d
512 (Sup Ct, Bronx County 1987) (plaintiff granted trial preference where physician submitted
affidavit that he was in imminent danger of death).
Plaintiffs reference to the Covid-19 pandemic is insufficient to establish that he faces a
probability of death before trial absent additional support. Additionally, the fact that there is
1 CPLR 3403(a)(6) also provides for preference "where the plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant." However Plaintiff does not move under this provision and the condition for which Plaintiff is seeking preference was not caused by Defendants. 158867/2017 JORDAN, CHRISTOPHER vs. BBP STREET OWNER, LLC Page 4 of 5 Motion No. 009 01 O
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significant post-note discovery remaining militates against granting a trial preference in the
interests of justice. Thus, Plaintiffs motion for a trial preference is denied.
CONCLUSION
Accordingly, it is hereby:
ORDERED that Plaintiffs motion for a trial preference (mot. seq. 9) is denied; and it is
further
ORDERED that BPP and Quick's motion (mot. seq. 10) is denied, but the Defendants shall
be permitted to conduct the post-note of issue discovery sought, with deadlines to be set at the
discovery conference currently scheduled with the court for June 24, 2024 at 10:30 a.m. via MS
teams, and the deadline to file dispositive motions shall be extended to 90 days from the date of
this order; and it is further
ORDERED that, within 20 days from entry of this order, Plaintiff shall serve a copy of this
order with notice of entry on all parties and the Clerk of the General Clerk's Office ( 60 Centre
Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the
procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically
Filed Cases (accessible at the "E-Filing" page on the court's website at the address
www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.
6/5/2024 DATE SABRINA KRAUS, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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