Villezcas v 66 W. 84th St. Owners Corp.

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Villezcas v 66 W. 84th St. Owners Corp. 2016 NY Slip Op 32465(U) December 15, 2016 Supreme Court, New York County Docket Number: 153932/2013 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/19/2016 03:40 PM 1] NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/19/2016 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: INDEX NO. 153932/2013 NEW YORK COUNTY MANUELJ.MENDEZ PART 13 ----''-=---- Justice EMMA VILLEZCAS INDEX NO. 153932/2013 MOTION DATE 11/02/2016 MOTION SEQ. NO. 007 MOTION CAL. NO. Plaintiff, -against66 WEST 94rH STREET OWNERS CORP., 66 WEST 94rH EQUITIES LLC, TIME EQUITIES, INC., TIME EQUITIES ASSOCIATES LLC., ES & OS, INC, and KYROUS REAL TY GROUP, INC. Defendants. 66 WEST 94rH STREET OWNERS CORP., Third-Party Plaintiff, Third-Party Index No. 590037/2014 -againstN.Y.C. SUPER SERVICES, INC. and TRINITY DEVELOPMENT GROUP, INC., Third-Party Defendants. The following papers, numbered 1 tojJL were read on this motion to vacate the Note of Issue. Notice of Motion/ Order to Show Cause-Affidavits Answering Affidavits - Exhibits I I 1 - 3; 4 - 7; 8 -10; 11 -14 15 Replying Affidavits Cross-Motion: Exhibits... PAPERS NUMBERED 16; 17; 18; 19 D Yes X No Upon a reading of the foregoing cited papers, it is Ordered that (1) Third-Party Defendant Trinity Development Group, Inc. 's (herein "Trinity") motion under Sequence No. 007, (2) Defendant/Third-Party Plaintiff 66 West 84th Street Owners Corp's (herein "Owners Corp") and Defendant Kyrous Realty Group lnc.'s (herein "Kyrous") motion under Sequence No. 008, (3) Defendants 66 West 84th Equities, LLC, Time Equities, Inc. and Time Equities Associates, LLC's (herein "the Equities Defendants") motion under Sequence No. 009, and (4) Third-Party Defendants N.Y.C. Super Services, lnc.'s (herein "N.Y.C. Super") motion under Sequence No. 10, to vacate the Note of Issue and Certificate of Readiness filed on June 16, 2016, are granted. 1 of 4 [* 2] . Plaintiff comr:nenced this action by filing a Summons and Verified Complaint on April 30, 2013, alleging that she sustained personal injuries when she slipped and fell on a puddle of water in the lobby of 66 West 84th Street, New York, New York. Issue was joined (Mot. Seq. 7 Exh. B), and Kyrous filed a Third-Party Complaint on December 29, 2014, against Third-Party Defendants N.Y.C. Super and Trinity. (Mot. Seq. 7 Exh. C). Issue was joined by Trinity on July 6, 2015, and by N.Y.C. Super on October 5, 2015. (Mot. Seq. 7 Exh. D). A Status Conference was held on April 20, 2016, setting forth a discovery schedule for remaining document production, depositions, any post-deposition demands, and an IME of Plaintiff. (Mot. Seq. 7 Exh. E). The next Status Conference was to be held on June 22, 2016, and the Note of Issue was to be filed by August 31, 2016. (Id.). Plaintiff filed the Note of Issue and Certificate of Readiness on June 16, 2016. (Mot. Seq. 7 Exh. G). Defendants Owners Corp, Kyrous, the Equities Defendants, and Third-Party Defendants N.Y.C. Super and Trinity now move to vacate the Note of Issue and Certificate of Readiness arguing that Plaintiff prematurely filed the Note of Issue knowing that there remained outstanding discovery. That the Defendants and ThirdParty Defendants appeared for the Status Conference on June 22, 2016, unaware that the Plaintiff had appeared and left after advising the Court that the Note of Issue had been filed. All of the Movants contend thatthey attempted in good faith to requestthat the Plaintiff voluntarily withdraw the Note of Issue, but that Plaintiff did not. Trinity contends that the remaining outstanding discovery includes the depositions of Kyrous, N.Y.C. Super, and Trinity, an IME of Plaintiff as noticed and designated by Trinity (Mot. Seq. 7 Exh. F), and responses to Trinity's post-deposition demand for authorizations (Id.). Trinity argues that this discovery is necessary for its defense and preparation for trial as to liability, damages, and the Plaintiff's physical condition. Owners Corp and Kyrous contend that some of the outstanding depositions had been delayed due to a discovery motion they made against Trinity on May 24, 2016, which was subsequently withdrawn after receiving responses to their demands. (Mot. Seq. 8 Exhs. E & F). Owners Corp and Kyrous argue that the outstanding Third-Party depositions are important because one, or both, of these parties was responsible for handling the daily maintenance of the lobby area where Plaintiff alleges to have fallen. The Equities Defendants and N.Y.C. Super contend thatthe remaining discovery was not waived. The Equities Defendants further argue that a further IME of Plaintiff still needs to be conducted, that the outstanding depositions are necessary, and that all parties have the right to serve post-deposition demands. 2 2 of 4 [* 3] :1aintiff opp?ses the motion_ argui_ng that Owners Corp. delayed in commencing the Th!rd-Party act~on, that the mam action was well into the discovery process when the Third-Party action began, and that any delay in conducting discovery was due to the delay of the Third-Party action being commenced. That Plaintiff appeared for an IME on July 12, 2016 at the request of counsel for Owners Corp., that the Third-Party depositions were not conducted and not rescheduled, and that the failure of the depositions to proceed was not Plaintiff's fault. Plaintiff also argues that the outstanding discovery is based on the Third-Parties failure to litigate, that the parties had ample time to complete the discovery but did not, and that forcing the Plaintiff to wait for the Third-Party discovery to be completed would be unjust. Defendants and Third-Party Defendants argue that there is no merit to Plaintiff's argument that the Third-Party action was belatedly commenced because the Plaintiff also filed a Second Amended Complaint on March 15, 2015. (Mot. Seq. 7 Exh. A). That Plaintiff never moved to sever the Third-Party action, and that Plaintiff never complained or objected to the discovery going forward at the two discovery conferences held after issue was joined by the Third-Party Defendants. "Where a party timely moves to vacate a note of issue, it need show only that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of ... section [202.21] in some material respect" (Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390, 815 N.Y.S.2d 30 [1st Dept., 2006]; see 22 NYCRR § 202.21 [e]). Uniform Rule 202.21 (e)(1) provides the vehicle for vacating a note of issue and striking a case from the trial calendar. A note of issue and certificate of readiness will be vacated where there is still extensive discovery to be completed or where the certificate of readiness erroneously states that all discovery is complete (see Carte v. Segall, 134A.D. 2d 396, 520 N.Y.S. 2d 943 [2"d. Dept.1987] note of issue vacated where extensive discovery yet to be completed); Ortiz v. Arias, 285 A.O. 2d 390, 727 N.Y.S. 2d 879 [1st. Dept. 2001], vacating note of issue that contained erroneous facts including incorrect statement that discovery had been completed or waived). Vacatur of the Note of Issue and Certificate of Readiness is proper where the defendants demonstrate "unusual or unanticipated" circumstances or "substantial prejudice" sufficient to warrant post-note of issue discovery (Desario v. SL Green Management LLC, 118 A.D.3d 520987N.Y.S.2d151, 152 [ 2"d Dept., 2014] citing to, Schroederv. IESI N.Y. Corp., 24 A.D.Jd 180, 805 N.Y.S.2d 79 [1st Dept., 2005]; 22 NYCRR 202.21[d]). Plaintiff prematurely filed the Note of Issue knowing that there was outstanding discovery in accordance with this Court's Status Conference Order dated April 20, 2016. Defendants and Third-Party Defendants are entitled to any of the outstanding discovery from Plaintiff, are entitled to the outstanding depositions, and are entitled to serve post-deposition demands, if any. Defendants and Third-Party Defendants did not waive their rights to the discovery sought, therefore all discovery is not complete. Plaintiff provides no evidence to the contrary. 3 3 of 4 [* 4] Accordingly, it is hereby ORDERED that (1) Third-Party Defendant Trinity Development Group, lnc.'s (herein "Trinity") motion under Sequence No. 007, (2) Defendant/Third-Party Plaintiff 66 West s4th Street Owners Corp's (herein "Owners Corp") and Defendant Kyrous Realty Group lnc.'s (herein "Kyrous") motion under Sequence No. 008, (3) Defendants 66 West s4th Equities, LLC, Time Equities, Inc. and Time Equities Associates, LLC's (herein "the Equities Defendants") motion under Sequence No. 009, and (4) Third-Party Defendants N.Y.C. Super Services, Inc. 's (herein "N.Y.C. Super") motion under Sequence No. 10, to vacate the Note of Issue and Certificate of Readiness filed on June 16, 2016, are granted, and it is further, ORDERED, that the Note of Issue is vacated, the action is stricken from the trial calendar, and restored to the calendar of this Court, and it is further, ORDERED, that a copy of this Order with Notice of Entry be served upon all parties within 30 days from the date of entry of this Order, and it is further, ORDERED, that a copy of this Order with Notice of Entry shall be served upon the General Clerk's Office Trial Support Clerk (Room 119) who is directed to restore this action to the pre-trial calendar of this Court, and it is further, ORDERED, that the parties appear for a Compliance Conference in IAS Part 13 located at 71 Thomas St., Room 210, New York, New York 10013, on March 1, 2017, at 9:30 a.m. ENTER: CJ.MENDEZ Dated: December 15, 2016 J.S.C . .Mi.At\!JUEl ~r. ..,_, ~--~- Check one: D FINAL DISPOSITION Check if appropriate: X NON-FINAL DISPOSITION 0 DO NOT POST 4 4 of 4 ..r=---~·-.·~· •-1 -l\._,_,.,. JS C ... X REFERENCE

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