Odle v Arrington

[*1] Odle v Arrington 2006 NY Slip Op 51633(U) [13 Misc 3d 1201(A)] Decided on August 25, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 25, 2006
Supreme Court, Nassau County

Caroline Odle, Individually and as Mother and Natural Guardian of AARON ARRINGTON, Plaintiff(s),

against

Christopher Arrington, WILLIAM VELEZ and IRIS N. LIZAMA, Defendant(s).



012840/04



Beckman & Millman, P.C.

Attn: Debra Millman, Esq.

Attorney for Plaintiffs

116 John Street, Suite 1313

New York, NY 10038

Kelly Rode & Kelly

Attn: Jacqueline Cabrera, Esq.

Attorneys for Defendant Arrington

330 Old Country Road, Suite 305

Mineola, NY 11501

Lynch & Lynch, LLP

Attn: Vivian Gayed, Esq.

Attorneys for Defendants Velez and Lizama

The Medical Arts Building

142 Joralemon Street, Second Floor

Brooklyn, NY 11201

Thomas P. Phelan, J.

Motion by defendant Christopher Arrington and motion by defendants William Velez and Iris N. Lizama, each seeking an order vacating plaintiff's note of issue, awarding disclosure related relief and extending defendants' time to move for summary judgment are denied except to the limited extent that a missing document charge may be sought at trial as provided below.

On June 8, 2006 this action was certified as trial ready. Simultaneously therewith the parties entered into a stipulation providing for disclosure in three distinctly identified areas as follows:

1. plaintiff to respond to a certain March 29, 2006 demand within 45 days;

2. defendants to appear for deposition at least 45 days prior to trial or be precluded; and 3. defendants reserved their right to physical examinations within 45 days if not already held.[*2]

This June 8, 2006 stipulation was so ordered by the undersigned.

Insofar as post-certification document disclosure of any type is sought other that found in the March 29, 2006 demand, which was specifically incorporated by reference in the June 8, 2006 so ordered stipulation, such relief is denied as waived. Regarding disclosure as sought in the March 29, 2006 demand, such relief is denied as academic with one limited exception.

It is uncontroverted that in response to the within motion, those few outstanding authorizations identified in the March 29, 2006 demand were provided. If, however, plaintiff has not provided copies of the "physicians notes/letters issued regarding Aaron Arrington to excuse/limit his activities from school or class attendance ..." also sought in the March 29, 2006 demand, defendants may seek an appropriate missing document charge at trial (see PJI 1:77).

Counsel for defendants Velez and Lizama additionally contend that as of June 27, 2006, Independent Medical Examinations of plaintiff have not been held (affirmation of Vivian Gayed, Esq., June 27, 2006). Ms. Gayed, however, does not indicate whether said examinations were scheduled but plaintiff failed to appear, or whether there were future dates pending when she executed her affirmation. Nor is this court apprised of whether defendants ever designated their examining physician(s) as required by the January 26, 2006 compliance conference order. Such designation is a necessary predicate to any actual examination. Further, the silence of defendant Arrington and plaintiffs on this issue renders suspect whether, as of the submission of these motions, any physical examinations remained extant. Indeed, the August 11, 2006 affirmation by counsel for plaintiff in opposition in which she asserts that defendants' respective motions should be "denied as moot since plaintiff fully complied with defendants' requests" is unchallenged by reply.

It therefore appears at this time that no justifiable disclosure remains outstanding so as to warrant vacatur of the note of issue or other disclosure related relief.

Finally, defendants seek an extension of time to move for summary judgment. Such relief is to be awarded only upon "a showing of good cause for the delay in making the motion" (Brill v. City of New York, 2 NY3d 648, 652; CPLR §3212(a)). Here there is a dearth of information about the relationship between the then outstanding disclosure and its impact upon a future motion for summary judgment. Most glaringly, while the pleadings reveal that the action arises out of a motor vehicle accident in which summary judgment motions must commonly include the "serious injury" threshold, defendants have not seen fit to even provide a copy of the bill of particulars.

This court will not speculate upon the basis for a future summary judgment motion and cannot therefore conclude that defendants have provided the requisite good cause to justify extending their time to move for such relief. [*3]

This decision constitutes the order of the court.

Dated: August 25, 2006 THOMAS P. PHELAN

J.S.C.