Battiste v Mathis
2012 NY Slip Op 31082(U)
April 9, 2012
Supreme Court, Queens County
Docket Number: 7588/11
Judge: Howard G. Lane
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE HOWARD G. LANE
Justice
IAS PART 6
------------------------------------KEISHA BATTISTE,
Index No. 7588/11
Motion
Date February 28, 2012
Plaintiff,
-against-
Motion
Cal. Nos.
GEORGE MATHIS and MALCOLM A. PURNELL,
Defendants.
-------------------------------------
4 and 5
Motion
Sequence Nos.
2 and 3
Papers
Numbered
Order to Show Cause No. 4..............
Opposition.............................
1-5
6-8
Notice of Motion No. 5.................
Opposition.............................
1-4
5-7
Upon the foregoing papers it is ordered that the motion by
defendants, George Mathis and Malcolm A. Purnell for an order:
(a) Pursuant to CPLR 2221(d) granting reargument of this Court's
decision and order dated December 6, 2011 insofar as that order
denied the motion of defendants, George Mathis and Malcolm A.
Purnell to vacate the Note of Issue;
(b) Pursuant to 22 NYCRR 202.21(3) vacating the Note of Issue and
Certificate of Readiness filed and served by the plaintiffs and
striking this action from the trial calendar on the grounds that
the Certificate of Readiness is incorrect in that all discovery
now known to be necessary has not been completed; and therefore,
this case is not ready to proceed to trial;
(c) Pursuant to CPLR 3212(a) extending defendants' time to move
for summary judgment until 120 days from the date of completion
of all outstanding discovery, or to a date that this Court deems
just and proper;
(d) Pursuant to CPLR 3124 and 3126(2) directing the plaintiff to
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comply with all outstanding discovery yet to be completed; or, in
the alternative, precluding the plaintiff from offering any
evidence at the trial of this action as to any subject on which
discovery has not been provided; and the order to show cause by
Defendants George Mathis and Malcolm A. Purnell for an order:
(a) Allowing the submission of this motion pursuant to NYCRR
202.21(d), as additional pretrial proceedings are necessary to
prevent substantial prejudice against the defendants George
Mathis and Malcolm A. Purnell;
(b) Pursuant to 22 NYCRR 202.21(3) vacating the Note of Issue and
Certificate of Readiness filed and served by the plaintiffs and
striking this action from the trial calendar on the grounds that
the Certificate of Readiness is incorrect in that all discovery
now known to be necessary has not been completed; and therefore,
this case is not ready to proceed to trial;
(c) Pursuant to CPLR 3212(a) extending defendants' time to move
for summary judgment until 120 days from the date of completion
of all outstanding discovery, or to a date that this Court deems
just and proper;
(d) Pursuant to CPLR 3124 and 3126(2) directing the plaintiff to
comply with all outstanding discovery yet to be completed; or in
the alternative, precluding the plaintiff from offering any
evidence at the trial of this action as to any subject on which
discovery has not been provided, are hereby consolidated solely
for the purposes of disposition of the instant motion and order
to show cause and are hereby decided as follows:
It is undisputed that plaintiff served and filed a Note of
Issue and Certificate of Readiness on October 12, 2011.
Defendants previously moved this Court for an order vacating the
Note of Issue and Certificate of Readiness and removing the
action from the trial calendar on the grounds that there were
outstanding post EBT Demands and supplemental Post EBT Demands,
which Demands requested HIPAA Compliant authorizations. In a
decision and order dated December 6, 2011, this Court held in
relevant part:
Upon the foregoing papers it is ordered
that the branch of defendants’ motion for an
order vacating the Note of Issue and
Certificate of Readiness and removing this
action from the trial calendar is hereby
denied. The record reflects that it has not
been established that all discovery has not
yet been completed, and the matter is not yet
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ready for trial (22 NYCRR 202.21[e]; see,
Drapaniotis v. 36-08 33rd Street Corp., 288
AD2d 254 [2d Dept 2001]). The underlying
action is one for personal injuries allegedly
sustained by plaintiff, Keisha Battiste when
her vehicle was struck in the rear by a
vehicle owned and operated by the defendants
on June 26, 2008. . . .. It is undisputed
that plaintiff served and filed a Note of
Issue and Certificate of Readiness on
October 12, 2011.
It has been established that the
defendants post EBT Demands and Supplemental
Post EBT demands have been timely responded to.
The Court notes that to the extent movant
raises the issue that there is an outstanding
physical examination by the plaintiff, this
argument is procedurally improperly before the
Court as this issue was not noticed in
defendants’ original motion papers and is only
raised for the first time in defendants’ reply
papers (see, Belcastro v. Hewlett-Woodmere
Union Free Sch. Dist No. 14, 286 AD2d 744 [2d
Dept 2001]).
Additionally, that branch of defendants’
motion for an order to compel plaintiff to
complete discovery in this matter . . .is
denied as moot.
That branch of the instant Order to Show Cause seeking an
order pursuant to 22 NYCRR 202.21(3), vacating the Note of Issue
and Certificate of Readiness filed and served by the plaintiffs
and striking this action from the trial calendar on the grounds
that the Certificate of Readiness is incorrect in that all
discovery now known to be necessary has not been completed; and
therefore, this case is not ready to proceed to trial is hereby
denied as it is untimely. Uniform Rules for Trial Courts 22
NYCRR 202.21(e) sets forth specific procedures for vacating a Note
of Issue when there is a discovery dispute. Within 20 days after
service of a Note of Issue/Certificate of Readiness a party can
move to vacate the Note of Issue upon a showing that the
Certificate of Readiness is incorrect in some material way. This
Court finds that it is undisputed that the Note of Issue was filed
on October 12, 2011 and defendants failed to move to vacate the
Note of Issue on the grounds that physical examinations are
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outstanding, within 20 days of service of the Note of Issue and
Certificate of Readiness, as the instant order to show cause fails
to even indicate a date of service. As defendant failed to timely
move to vacate the Note of Issue on the grounds that a physical
examination is outstanding, this branch of the order to show cause
is denied.
That branch of defendants’ order to show cause allowing the
submission of this motion pursuant to NYCRR 202.21(d), as
additional pretrial proceedings are necessary to prevent
substantial prejudice against the defendants George Mathis and
Malcolm A. Purnell is denied. Pursuant to the Appellate Division,
Second Department, to make a discovery motion thereafter, "the
defendant [is] required to demonstrate that unusual or
unanticipated circumstances developed subsequent to the filing of
the note of issue and certificate of readiness which required
additional discovery to prevent substantial prejudice (see, 22
NYCRR 202.21[d])." (Audiovox Corp. v. Benyamini, 265 AD2d 135 [2d
Dept 2000]). The Court finds that defendants failed to proffer
any unusual or unanticipated circumstances which developed
subsequent to the filing of the Note of Issue and Certificate of
Readiness and as such the second prong of the standard i.e.
"substantial prejudice" need not be addressed (Utica Mutual Ins.
Co. v. P.M.A. Corp., 2006 NY Slip Op 8971 [2d Dept 2006]); Gomez
v. New York City Transit Authority, 19 AD3d 366 [2d Dept 2005]).
Accordingly, as defendants have failed to comply with NYCRR
202.21(d), this branch of the order to show cause is denied.
The remaining branches of the order to show cause are denied
as moot.
Those branches of defendants’ motion pursuant to CPLR 2221(d)
granting reargument of this Court's decision and order dated
December 6, 2011 insofar as that order denied the motion of
defendants, George Mathis and Malcolm A. Purnell to vacate the
Note of Issue and for an order pursuant to 22 NYCRR 202.21(3),
vacating the Note of Issue and Certificate of Readiness filed and
served by the plaintiffs and striking this action from the trial
calendar on the grounds that the Certificate of Readiness is
incorrect in that all discovery now known to be necessary has not
been completed; and therefore, this case is not ready to proceed
to trial; is granted solely to the extent that reargument is
granted, but upon reargument, these branches of the motion are
denied. Defendants failed to set forth a prima facie case that
they are entitled to any independent physical examination of
plaintiff after the filing of the Note of Issue. Defendants
present no Demands or Letters seeking a Physical Examination of
plaintiff and the plaintiff, in his opposition papers presents a
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Preliminary Conference Order of this Court dated June 8, 2011,
which Order indicates all physical examination were to be held
within thirty (30) days of plaintiff’s examination before trial,
which examination before trial was to be held on August 18, 2011.
Accordingly, these branches of the motion are denied.
The remaining branches of the motion are denied as moot.
This constitutes the decision and order of the Court.
Dated: April 9, 2012
..........................
Howard G. Lane, J.S.C.
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