Louis v Joseph

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Louis v Joseph 2021 NY Slip Op 30411(U) February 3, 2021 Supreme Court, Kings County Docket Number: 522993/19 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 02/10/2021 12:19 PM NYSCEF DOC. NO. 83 INDEX NO. 522993/2019 RECEIVED NYSCEF: 02/10/2021 At an !AS Tenn, Part 57 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 3rd day of February, 2021. PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X WILKEN LOUIS, Plaintiff, Index No. 522993/l 9 - agai11st JOSHUA JOSEPH and MEDIC EAST CORP, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X l'he e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed_ _ _ _ _ _ _ __ Opposing Affidavits (Affinnations)_ _ _ _ _ _ _ __ Reply Affirmation_ _ _ _ _ _ _ _ _ _ _ _ _ __ NYSCEF Doc Nos.' 59-66 69-80 82 Upon the foregoing papers, plaintiff, Wilken Louis (plaintiff or Lewis) moves in this tnotor vehicle accident case against defendants Joshua Jackson (Jackson) and Medic East Corp. (Medic) (collectively, defendants) in motion sequence (mot. seq.) three for an order (l) granting reargument and reconsideration of this co.urt's November 4, 2020 order in 1not. seq. two_, whicl1 vacated the note of issue 11erei11 and scheduled depositions and independent tnedical examinations (i.e. defendant-requested examinations) that had already been completed before the filing of the note of issue and (2) upon reargument, denying that 111otion. 1New York State Courts Electronic Filing Document Numbers 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 02/10/2021 12:19 PM NYSCEF DOC. NO. 83 INDEX NO. 522993/2019 RECEIVED NYSCEF: 02/10/2021 Bac/,ground and tlte Parties' Positions Defenda11ts inoved in 1not. seq. two to vacate t11e note of issue, as discovery purportedly remained outstanding, specifically, records from plaintiffs for1ner e1nployer, Hudson News, a11d also sot1ght an a11thoriz'ation for plaintiffs union records (see NYSCEF Doc Nos. 35-36). Plaintiff opposed the motion and noted that the authorization ibr the union records was not requested until after the note of' issue had been filed, and that plaintiff had provided a11 authorization to I-Iudson News inonths earlier. Defendants' difficulty in actually obtaining the records from 1-Iudson News was an issue outside of plaintiffs control and not due to any act or fault of plaintiff. (see NYSCEF Doc No. 48). Plai11tiff co11te11ds in the present n1otion that the cot11i erred in vacating the note of issue and scheduling depositions and IMEs as there were no outstanding discovery demands, and depositions and IMEs had already been completed when the note of issue was filed. Defendants, in reply to the opposition in mot. seq. two and in opposition to the present motion, have contended that the outstanding records are essential to their defense of this action, and that vacatur of the note was warranted to allow discovery to be completed and enable timely su1nmary judg1nent 1notions after discovery was complete (see NYSCEF Doc Nos. 36 and 69). Discussion The November 4, 2020 order inadvertently failed to recognize that all discovery had been completed when tl1e note of issue was filed in this case. Plaintiff has correctly highlighted tha!, as no discovery was due from plaintiff when the note was filed, 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 02/10/2021 12:19 PM INDEX NO. 522993/2019 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/10/2021 defendants' belated post-note of issue demand for an authorization for union records \vould not provide a proper basis to vacate the note. Defendants never obtained a court order directing plaintiff to provide an authorization to his union, and the rnotio11 papers do not set fortl1 the basis for their den1and. Nevertheless, to the extent that the union records may include plaintiffs work schedule and wages, and inasmuch as defendants allege that plaintiffs employer has not provided these records as authorized, plaintiff is being directed to provide authorization to his union to provide such records, limited to work schedule and ear11ings, not\vithstanding the lateness of the demand. Defendants' contempt motion against nonparty I-Iudson News, mot. seq. one, for its failure to provide plaintiffs entire work records, beyo11d the payroll and attendance records plaintiff authorized, is sub judice. Th·at tnotion also does not provide a basis to sanction plaintiff by vacating tl1e note of issue duly filed upon completion of tl1e discovery obligatio11s. parties~ Indeed, plaintiff provided the proper authorization and is not responsible for Hudson's alleged failure to provide records. He also appeared for an examination before trial ru1d provided employment and IRS at1thorizations. Plaintiffs rnotion to rcargue and reconsider the November 4, 2020 or-der thus warrants bein-g granted. Defendants' request for a 60-day extensio11 of time to submit a st1mmary judgment 1notion cannot be addressed at this juncture as defendants have not i11oved or cross-1noved to properly seek such affinnative relief (see CPLR 2215 entitled "Relief demanded by other than moving party" and Professor Patrick M. Connors, 2020 Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1D ... Necessity of Cross Motion ... ). In any event, defendants i11ay tnove for pennission to 1nake -a 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 02/10/2021 12:19 PM NYSCEF DOC. NO. 83 INDEX NO. 522993/2019 RECEIVED NYSCEF: 02/10/2021 summary judgment motion before the !AS Judge, pursuant to Brill v City ~f New York (2 NY3d 648, 651-653 [2004]), if the forthcoming further discovery appears to provide a basis for such motion. Accordingly, it is ORDERED that le.ave to reargue is granted, and, upon reargument, the court's November 4, 2020 order vacating the note of issue is, in tum, vacated in its entirety; -and it is further ORDERED that the matter is restored to the trial calendar as of September 30, 2020, when it was filed; and it is further ORDERED that plaintiff provide an authorization for payroll and attendance records maintained by his union by February 26, 2021; and it is fmiher ORDERED that defendants' request for a 60-day extension of time to submit a su1111nary judg1nent 111otion cannot be addressed at this juncture, as discussed in the opiI1ion, but defendants may move for permission to make a su1n1nary judgment tnotion before the !AS Judge, pursuant to Brill v City a/New York (2 NY3d 648 [2004]), if the forthcoming further discovery appears to provide a basis for sucl1 motion_. This constitutes the decision and order of the court. ENTER 4 4 of 4

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