Brandner v Boricua Coll. Dev. Corp.

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Brandner v Boricua Coll. Dev. Corp. 2020 NY Slip Op 30135(U) January 16, 2020 Supreme Court, New York County Docket Number: 151166/2016 Judge: Robert R. Reed 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. [*FILED: 1] NEW YORK COUNTY CLERK 01/21/2020 11:22 AM NYSCEF DOC. NO. 111 INDEX NO. 151166/2016 RECEIVED NYSCEF: 01/21/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: _______ _.........,...__ ..................................................... HON. ROBERT R. REED PART 43 Justice ----X SUSAN BRANDNER, INDEX NO. 151166/2016 NIA MOTION DATE Plaintiff, MOTION SEQ. NO. _ _ _0_0_5_ _ -vBORICUA COLLEGE DEVELOPMENT CORP., INDIVIDUALLY AND D/B/A BORICUA COLLEGE, BORICUA COLLEGE, THE HISPANIC SOCIETY OF AMERICA, JAIME PATXOT, NEWYORKCITY LANDMARKS PRESERVATION COMMISSION, DECISION + ORDER ON MOTION Defendant. ------------,--X THE HISPANIC SOCIETY OF AMERICA Third-Party Index No. 595076/2017 Plaintiff, -againstURBAN ARBORISTS, INC., NEW YORK CITY DEPARTMENT OF PARKS & RECREATION Defendant. -----------------------------------------------X The following e-filed doquments, listed by NYSCEF document number (Motion 005) 89, 94,95,96,97,98,99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109 . were read on this motion to 9o, 91, 92, 93, VACATE/STRIKE - NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR Upon the foregoing documents, it is ordered that this motion is granted in part and denied in part. Third-party defendant Urban Arborists, Inc. (Urban) moves to strike plaintiffs note of issue and certificate of readiness, to compel all outstanding discovery, and to extend the time to file a motion for summary judgment. Plaintiff opposes, arguing that there is no outstanding discovery. 15116612016 BRANDNER, SUSAN Motion No. 005 vs. BORICUA COLLEGE DEVELOPMENT 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 01/21/2020 11:22 AM NYSCEF DOC. NO. 111 INDEX NO. 151166/2016 RECEIVED NYSCEF: 01/21/2020 On or about December 29, 2016, plaintiff filed _the first note of issue. On or about December 2, 2019, plaintiff filed the second note of issue and affirmed that all outstanding discovery was complete, and that plaintiff was ready for trial. Urban, however,.disagrees, arguing that outstanding discovery remains. Specifically, Urban argues that plaintiff failed to fully respond to Urban's notice for discovery dated April 24, 2019. Urban also argues that plaintiff filed the second note of issue five days after third-party plaintiffs (The Hispanic Society [HSA]) deposition and before Urban received the transcript of said deposition and could serve post deposition demands upon HSA for demands made during the deposition. Urban subsequently served post deposition demands upon HSA and asserts that the requested discovery is relative to Urban's liability for subject accident. A court may vacate a note of issue where it appears that a material fact set forth therein, i.e., the representation that discovery is complete, is incorrect (see 22 NYCRR 202.2l(e); Rivers v Birnbaum, 102 AD3d 26 [2nd Dept 2012]; Gomes v Valentine Realty LLC, 32 AD3d 699 [1st Dept 2006]; Herbert v Sivaco Wire Corp., 1 AD3d 144 [1st Dept 2003]). Further, CPLR 3101 provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "The words 'material and necessary' as used in CPLR 3 IOI(a) are 'to be interpreted liberally to require disclosure ... of any facts bearing on the controversy' (Allen v Crowell-Collier Pub. Co., 21NY2d403, 406 [1968])" (Matter ofSteam Pipe Explosion at 4lst Street and Lexington Avenue, 127 AD3d 554, 555 [1st Dept 2015]). In a review of the record and all submitted papers, the record is devoid of any admissible proof -- before the within motion -- demonstrating Urban's dissatisfaction with plaintiffs discovery response. Moreover, Urban has failed to proffer any communication demonstrating its 151166/2016 BRANDNER, SUSAN Motion No. 005 vs. BORICUA COLLEGE DEVELOPMENT 2 of 4 Page 2of4 [*FILED: 3] NEW YORK COUNTY CLERK 01/21/2020 11:22 AM NYSCEF DOC. NO. 111 INDEX NO. 151166/2016 RECEIVED NYSCEF: 01/21/2020 efforts to notify plaintiff of any deficiencies and a good faith effort to resolve what it now asserts to be plaintiff's failure to fully respond to its discovery demands. In the court's view, plaintiff has substantially responded to Urban's discovery demands dated April 24, 2019. Urban asserts that the discovery sought from HSA is necessary and material and is relative to Urban's liability for the subject accident. The court cannot ignore Urban's argument of materiality and necessity regarding the post deposition demands served upon HSA to its defense in this action. Accordingly, it is ORDERED that the portion of third-party defendant Urban Arborists Inc. 's motion to vacate the note of issue and certificate of readiness is denied; and it is further ORDERED that the portion of third-party defendant Urban Arborists Inc.'s motion to compel plaintiff to respond to outstanding discovery is denied; and is it further ORDERED that, within 15 days from entry of this order, third-party plaintiff The Hispanic Society of America is directed to provide responsive documents to third-party defendant Urban Arborists Inc. 's post deposition demands dated October 24, 2019; and it is further ORDERED that the portion of third-party defendant Urban Arborists Inc.'s motion to extend time to file a dispositive motion is granted; and it is further 15116612016 BRANDNER, SUSAN Motion No. 005 vs. BORICUA COLLEGE DEVELOPMENT 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 01/21/2020 11:22 AM NYSCEF DOC. NO. 111 INDEX NO. 151166/2016 RECEIVED NYSCEF: 01/21/2020 ORDERED that, within 45 days from entry of this order, movant shall file all dispositive motions. This constitutes the Decision and Order of the court. ~;; 1/16/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~~ ROBERT R. REED, J.S.C. ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 15116612016 BRANDNER, SUSAN vs. BORICUA COLLEGE DEVELOPMENT Motion No. 005 4 of 4 D OTHER D REFERENCE Page4of4

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