Scott v Leventhal

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Scott v Leventhal 2021 NY Slip Op 32389(U) October 29, 2021 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James 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. [* 1] INDEX NO. 656211/2017 NYSCEF DOC. NO. 314 RECEIVED NYSCEF: 10/29/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES Justice ----------------------------------------------------------------- ----------------X PATRICIA SCOTT, AS EXECUTRIX OF THE ESTATE OF PATRICK FLEMING, 59 INDEX NO. MOTION DATE 656211/2017 10/20/2020 012 014 MOTION SEQ. NO. Plaintiff, - V - JASON LEVENTHAL and LEVENTHAL LAW GROUP, P.C., DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 012) 222, 223, 224, 225, 226,227,228 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 014) 290, 291, 292, 293, 294,295,296,297,298,299,300,301,302,303 were read on this motion to/for REARGUMENT/RECONSIDERATION ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiff for leave to reargue her motion for summary judgment and defendants' cross motion for summary judgment (motion sequence number 014) is denied; and it is further ORDERED that the motion to vacate the note of issue sequence number 012) pursuant to 22 NYCRR § 202.21(e) (motion is granted and the note of issue is vacated and the case is stricken from the trial calendar; and it is further 656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Motion No. 012 014 1 of 4 Page 1 of4 [* 2] INDEX NO. 656211/2017 NYSCEF DOC. NO. 314 RECEIVED NYSCEF: 10/29/2021 ORDERED that all further discovery in this matter shall be completed within seventy-five (75) days from service of a copy of this order with notice of entry; and it is further ORDERED that on November 29, 2021, counsel are directed to post on NYSCEF a proposed Status Conference Order and proposed competing Status Conferences Orders setting forth the date that plaintiff shall produce (or has produced) before a notary public, post deposition to defendants a signed, copy of her examination before trial and documents, in the form of an affidavit of plaintiff, signed before a notary public; and it is further ORDERED that, within fifteen (15) days from service of a copy of this order with notice of the entry of this order, movant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office ( 60 Centre Street, Room 119), who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further ORDERED that, within twenty discovery as hereinabove directed, (20) days from completion of the plaintiff shall cause the action to be placed upon the trial calendar by the filing of a new note of issue and certificate of readiness (for which no fee shall be imposed), to which shall be attached a copy of this order; and it is further 656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Motion No. 012 014 2 of 4 Page 2 of 4 [* 3] INDEX NO. 656211/2017 NYSCEF DOC. NO. 314 ORDERED RECEIVED NYSCEF: 10/29/2021 that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh) DECISION Plaintiff does not disagree that she had not produced a copy of her deposition transcript, signed before a notary public at the time she filed her Note of Issue. Nor had she responded to defendants post deposition notice for the production of documents. Moreover, while clearly there would be no pediatric care records for plaintiff's adult son, plaintiff attorney's letter is otherwise non-responsive to defendants' notice for post deposition discovery. For example, his statement that certain documents demanded are irrelevant is inapposite, as irrelevancy is the standard for admissibility of evidence. Whether a document is "material and necessary to the resolution of the issues", a lower standard, governs the question of what evidence is discoverable. See Allen v Crowell-Collier Publishing Company, 21 NY2d 403, 405-406 (1968). Furthermore, as plaintiff's attorney has no personal knowledge of the facts of the underlying claims of negligence and assault against the City of New York, his statement is non-evidentiary. Therefore, in order to comply with defendants' post deposition discovery 656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Motion No. 012 014 3 of 4 Page 3 of 4 [* 4] INDEX NO. 656211/2017 NYSCEF DOC. NO. 314 RECEIVED NYSCEF: 10/29/2021 demand, plaintiff's counsel shall submit an affidavit, signed by his client, that states her knowledge, if any, of which hotel and/or construction company employed her son and the names of medical providers who treated, and administered medication, if any, to her son, for the injuries she alleges he suffered as a result of the assault. Certainly, such records would be relevant to pain and suffering and diminution of plaintiff decedent's enjoyment of life, inter alia, portion of plaintiff's claim for damages. As a material fact in the certificate of readiness was incorrect, the note of issue must be vacated. See Vargas v Villa Josefa Realty Corp. 28 AD3d 389 (1 st Dept 2006). P- ~ ;I - } ~ 20211029151927DJAMESF159CE724C6E4E55997DB946419A3C85 10/29/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA JAMES, J.S.C. ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 656211/2017 SCOTT, PATRICIA vs. LEVENTHAL, ESQ., JASON Motion No. 012 014 4 of 4 • • OTHER REFERENCE Page4 of 4

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