Muminovic v. KPMG LLP

2024 NY Slip Op 30800(U)

• Court: New York Supreme Court, New York County
• Decided: March 13, 2024
• Status: Unpublished

Opinion

Muminovic v KPMG LLP 2024 NY Slip Op 30800(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 151651/2014 Judge: Debra A. James 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. 151651/2014 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 03/13/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 151651/2014 JASMINA MUMINOVIC, MOTION DATE 03/13/2024 Plaintiff, MOTION SEQ. NO. 004 005 -v- KPMG LLP, 345 PARK AVENUE L.P., and RUDIN DECISION + ORDER ON MANAGEMENT CO. INC., MOTION Defendants. ---------------------------------------------------------------------------------X

KPMG LLP, Index No. 595349/2016 (Third Party Action #1) Third-Party Plaintiff,

-against-

MERLIN INDUSTRIES, INC,

Third-Party Defendant. ---------------------------------------------------------------------------------X

KPMG LLP, Index No. 595879/ 2017 (Third Party Action #2) Second Third-Party Plaintiff,

ARAMACK CORPORATION, PEPSICO, INC, CC VENDING, INC AND PEPSI-COAL BOTTLING COMPANY OF NEW YORK CITY INC,

Second Third-Party Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 230, 231, 232, 233,

259, 261, 262, 265, 266, 269, 270

VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR .

151651/2014 MUMINOVIC, JASMINA vs. KPMG LLP Page 1 of 5 Motion No. 004 005

1 of 5 [* 1] INDEX NO. 151651/2014 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 03/13/2024

The following e-filed documents, listed by NYSCEF document number (Motion 005) 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 260, 263, 264, 267, 268, 271, 272, 273 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR .

ORDER

Upon the foregoing documents, it is

ORDERED that the motion of defendants KPMG LLP, 345 Park

Avenue LP, and Rudin Management Co, Inc, (motion sequence number

004), the motion of third-party defendant Merlin Industries, and

the cross motion of second third-party defendant CC Vending, Inc

(motion sequence number 005) to vacate the note of issue pursuant

to 22 NYCRR § 202.21(e) are granted and the note of issue is

vacated, and the case is stricken from the trial calendar; and it

is further

ORDERED that all further discovery in this matter shall be

completed within sixty (60) days from service of a copy of this

order with notice of entry, and the court otherwise orders that

discovery is to continue and is not stayed pursuant to CPLR 3214;

and it is further

ORDERED that counsel are directed to post on NYSCEF a proposed

discovery status conference order or competing proposed discovery

status conference order(s) at least two days before May 14, 2024,

11:10 AM, on which date and time counsel shall appear via Microsoft

Teams, unless such appearance be waived by the court; and it is

further

151651/2014 MUMINOVIC, JASMINA vs. KPMG LLP Page 2 of 5 Motion No. 004 005

2 of 5 [* 2] INDEX NO. 151651/2014 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 03/13/2024

Counsel shall henceforth refrain from posting on NYSCEF any

discovery demands, notices and/or testimony/records, save for

bills of particulars, as amplified pleadings, produced on

discovery, (see, for e.g., Scollo v Good Samaritan Hospital, 175

AD2d 278 [2d Dept 1991]), unless as exhibit(s) to a meritorious

application, brought by notice of motion or order to show cause;

and it is further;

ORDERED that, within fifteen (15) days from the entry of

this order, any movant shall serve a copy of this order with notice

of entry on all parties and upon the Clerk of the General Clerk’s

Office, who is hereby directed to strike the case from the trial

calendar and make all required notations thereof in the records of

the court; and it is further

ORDERED that, within fifteen (15) days from completion of

discovery as hereinabove directed, the plaintiff shall cause the

action to be placed upon the trial calendar by the filing of a new

note of issue and certificate of readiness (for which no fee shall

be imposed), to which shall be attached a copy of this order; and

it is further

ORDERED that such upon the Clerk of the General Clerk’s Office

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).

151651/2014 MUMINOVIC, JASMINA vs. KPMG LLP Page 3 of 5 Motion No. 004 005

3 of 5 [* 3] INDEX NO. 151651/2014 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 03/13/2024

DECISION

Though plaintiff is correct that the deposition of second

third-party defendant Pepsi-Cola Bottling Company did not take

place on or before October 13, 2023, and has not occurred to

date, leaving such third-party defendant in non-compliance with

the directive of the discovery status conference order dated

September 14, 2023, it was not for plaintiff to unilaterally

determine that discovery was complete. Having so certified in

her Certificate of Readiness, filed on November 10, 2023,

plaintiff was in contravention of that same discovery status

conference order of September 14, 2023, which directed counsel

to post on NYSCEF proposed status conference order(s) at least

two days before October 17, 2023, and on such date appear via

Microsoft Teams for a conference. Moreover, in addition to the

non-compliance of third-party defendant Pepsi-Cola Bottling

Company, plaintiff does not disagree that demands for discovery,

(post examinations before trial), have not been completed in

accordance with the September 14, 2023. filed her Note of Issue

and Certificate of Readiness. As material facts in the

151651/2014 MUMINOVIC, JASMINA vs. KPMG LLP Page 4 of 5 Motion No. 004 005

4 of 5 [* 4] INDEX NO. 151651/2014 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 03/13/2024

certificate of readiness are incorrect, the action must be

stricken from the trial calendar. See Vargas v Villa Josefa

Realty Corp, 28 AD3d 389 (1st Dept 2006).

3/13/2024 DATE DEBRA A. JAMES, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

151651/2014 MUMINOVIC, JASMINA vs. KPMG LLP Page 5 of 5 Motion No. 004 005

5 of 5 [* 5]