Hernandez v Santiago

[*1] Hernandez v Santiago 2018 NY Slip Op 51255(U) Decided on August 28, 2018 Civil Court Of The City Of New York, Bronx County Gomez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2018
Civil Court of the City of New York, Bronx County

Ivelisse Hernandez, Plaintiff,

against

Alfred C. Santiago, Sr. and Alfred Santiago, Defendants.



300027/18



Attorney for Plaintiff; Burns & Harris

Attorney for Defendants: Kay & Gray
Fidel E. Gomez, J.

In this action for personal injuries sustained as a result of defendants' alleged negligence in the operation and ownership of a motor vehicle, defendants move for an order pursuant to CPLR § 3126, striking plaintiff's note of issue[FN1] for her failure to comply with defendants' most recent discovery demand. Plaintiff opposes the instant motion, asserting that insofar as the discovery demand at issue was made after plaintiff filed her note, defendants are not entitled to it absent a quantum of proof which, here, defendants fail to provide.

For the reasons that follow hereinafter, defendants' motion is denied.

According to the complaint, the instant action is for personal injuries arising from the negligent operation and ownership of a vehicle. The complaint alleges that on June 19, 2014, plaintiff was involved in an accident when a vehicle owned by defendant ALFRED C. SANTIAGO, SR. and operated by defendant ALFRED SANTIAGO came into contact with her as she traversed the public roadway. Plaintiff alleges that the accident was the result of defendants' negligence and that she sustained injuries as a result.

Defendants' motion seeking to strike plaintiff's complaint is denied. Preliminarily, because defendants seek to strike the note of issue by moving pursuant to CPLR § 3126, the instant motion must be denied on grounds that defendants move under the wrong statute and/or rule. CPLR § 3126 authorizes the Court to strike pleadings and not notes of issue. Nevertheless, [*2]because it is clear that defendants seek to strike the note of issue pursuant to 22 NYCRR 202.21 and plaintiff opposes the instant motion on grounds related thereto, the Court treats the instant motion as if made under the correct statute or rule and nevertheless denies the same. Significantly, as relevant here, defendants have failed to establish that the discovery sought is premised on unusual or unanticipated circumstances so as to warrant vacatur of the note of issue.

Pursuant to 22 NYCRR 202.21(e), the court can vacate a note of issue when it is based on a Certificate of Readiness which contains erroneous facts (Ortiz v Arias, 285 AD2d 390, 390 [1st Dept 2001]). Specifically, a note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino v Lewittes, 160 AD2d 176, 178 [1st Dept 1990]; Spilky v TRW, Inc., 225 AD2d 539, 540 [2d Dept 1996]; Levy v Schaefer, 160 AD2d 1182, 1183 [3d Dept 1990]). Additionally, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note's service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]), otherwise, the court should deny it (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006]; Rodriguez v Sau Wo Lau, 298 AD2d 376, 377 [2d Dept 2002]), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo v City of New York, 62 AD3d 964, 965 [2d Dept 2009] ["The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness."]; James v New York City Transit Authority, 294 AD2d 471, 472 [2d Dept 2002]). Notably, when the party seeking to vacate a note of issue because discovery remains outstanding has had ample time to procure the discovery sought prior to the filing of the note, but made no effort to do so, the failure to procure discovery is deemed solely the fault of the party seeking vacatur, and the court, in the exercise of its discretion, can deny a motion to vacate the note (Torres v New York City Transit Authority, 192 AD2d 400, 400 [1st Dept 1993]). Under the foregoing circumstances, it is not an abuse of discretion to allow the note of issue to stand while concomitantly ordering that discovery be conducted to completion (id.).

As noted above, generally, a defendant to whom discovery is owed waives the right to such discovery when plaintiff files his or her note of issue and the defendant fails to timely move to vacate it (Manzo at 965 ["The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness."]; James at 472). However, "[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings (22 NYCRR § 202.21[d]). Thus, when it is demonstrated that unusual and unanticipated circumstances merit post-note discovery, the court has the discretion to order the same (Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005] ["The other method of obtaining post-note of issue disclosure is found in 22 NYCRR 202.21 (d). This section permits the court to authorize additional discovery '[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness' that would otherwise cause 'substantial prejudice.' Because this section requires both unusual and unanticipated circumstances and substantial prejudice, it has been described as the 'more [*3]stringent standard.']; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept 2000] ["Applying the above rules to the facts of this case, it is undisputed that the defendant did not move to vacate the note of issue within 20 days of its filing. Accordingly, the defendant was 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."]). The foregoing is equally applicable to non-party discovery and can form the basis for the grant of a motion seeking to quash a subpoena on grounds that post-note of issue discovery is unwarranted (Maron v Magnetic Const. Group Corp., 128 AD3d 426, 427 [1st Dept 20015]; White v Bronx Lebanon Hosp. Ctr., 240 AD2d 212, 212 [1st Dept 1997]).

Notably, the mere need for further discovery (Price v Bloomingdale's, a Div. of Federated Dept. Stores, Inc., 166 AD2d 151, 152 [1st Dept 1990] ["Notwithstanding that the physical examination sought by defendant might enhance the prospect of settlement without prejudice to plaintiff, we think it clear that such considerations do not fall within the 'unusual and unanticipated circumstances' rubric of the rule permitting post-note of issue pretrial proceeding."]), or the absence of prejudice were post-note discovery authorized, is not an unusual or unanticipated circumstance warranting further post-note discovery (Price v Brody, 7 AD2d 204, 205 [1st Dept 1959] ["In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs' motion to vacate defendant's notice of examination before trial. The oft-enunciated policy of encouraging pre-trial disclosure in most cases in and of itself is not sufficient to excuse a party's failure to comply with the Special Rule Respecting Calendar Practice. The further fact, as stated here, that neither party will be prejudiced by allowing the examination, should not be a decisive factor in permitting departure from the general rule. Present special, unusual or extraordinary circumstances, spelled out factually, the court has discretion to depart from this interpretation of the rule. In all cases involving this rule, however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it (internal citations omitted)]).

Here, apparently unaware that CPLR § 3126 does not authorize the relief sought - striking a note of issue - defendants' motion is premised on the wrong statute. To be sure, defendants seek to strike the note of issue for plaintiff's failure to respond to and comply with a Demand for Discovery dated May 23, 2018, wherein defendants sought plaintiff's cell phone records at or about the time of the instant accident. That CPLR § 3126 does not autrhorize the remedy sought is axiomatic. To be sure, CPLR § 3126 authorizes the court to issue "an order striking out pleadings or parts thereof" when a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." Thus, pursuant to CPLR § 3126, the court can strike a party's pleading for failure to provide discovery, and only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). By contrast, 22 NYCRR 202.21 prescribes the Court's power to vacate notes of issue. The foregoing, notwithstanding, because defendant premises its motion on a recent deposition, arguing that it gives rise to the striking of the note and because plaintiff opposes this motion on those grounds, the Court treats the instant motion as one made under 22 [*4]NYCRR 202.21, determining the same in accordance therewith (Misicki v Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made"]).

First, to extent that defendants seek to strike plaintiff's note of issue pursuant to 22 NYCRR 202.21(e), such motion must be denied as untimely. To be sure, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note's service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado at 157), otherwise, the court should deny such motion (Utica Mut. Ins. Co. at 794; Rodriguez at 377. In this case, the note of issue was filed and served upon defendants in 2016 and to date, more than two years later, they have never moved to vacate the same. Hence, any motion pursuant to 22 NYCRR 202.21(e) must be denied.

Second, to the extent that defendants seek to strike the note of issue and have plaintiff provide additional discovery pursuant to 22 NYCRR 202.21(d), they have failed to demonstrate that the discovery sought is premised on unusual or unanticipated circumstances. Indeed, 22 NYCRR 202.21(d) authorizes post-note discovery when it is demonstrated that unusual and unanticipated circumstances merit the same (Schroeder at 181; Audiovox Corp. at 140. This more stringent standard, however, requires proof beyond the mere need for further discovery (Price at 152, or the absence of prejudice were post-note discovery authorized (Price at 205).

Here, defendants argue that they first learned that at the time of the instant accident, plaintiff was on her cell phone - which they claim is evidence of comparative negligence previously denied by plaintiff - on May 16, 2018, when they deposed nonparty witness Caridad Maldonado (Maldonado); years after note of issue was filed. Thus defendant's aver that this recent deposition yielded unanticipated facts warranting further discovery. However, at oral argument, defendants - by counsel - conceded that they have been aware that Maldonado was a witness to the instant accident for several years insofar as she was listed as a witness in the relevant police report. Despite the foregoing, and beyond merely asserting - again at oral argument - that they did not depose Maldonado earlier so as to avoid making her a hostile witness - defendants proffer nothing which excuses the delay in deposing her prior to the filing of the note. Under these circumstances, it is hard to fathom how her testimony - which could have been obtained years ago - is unusual or unanticipated. Contrariwise, her testimony and the fact that it could controvert plaintiff's version of the events was foreseeable. This, coupled with the absence of any concrete proof that efforts to depose Maldonado before May 2018 proved fruitless, belies any claim that the discovery sought is unusual or unanticipated. Indeed, here, any delay in obtaining Maldonado's testimony is the direct result of defendants' failure to depose her. Accordingly, to the extent that defendants seek further discovery pursuant to 22 NYCRR 202.21(d), such motion is denied. It is hereby

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof

This constitutes this Court's decision and Order.

Dated: August 28, 2018

Bronx, New York

______________________________

FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: Because this case was commenced in Supreme Court, the parties use the term note of issue to refer to the Notice of Trial, which is that document's equivalent in Civil Court (see New York City Civil Court Act § 1301). Because this action was transferred to Civil Court after the note of issue was filed in Supreme Court, for the sake of consistency, the Court will refer to the forgoing document as a note of issue or note.