Allen v. Hiraldo

14 Citing cases

  1. Peterson v. City of New York

    222 A.D.3d 564 (N.Y. App. Div. 2023)   Cited 1 times

    Supreme Court improvidently exercised its discretion in granting the City's motion to vacate the note of issue made more than 20 days after the note of issue was filed, since it failed to show good cause for the delay, or that plaintiff's physical examination was required to prevent substantial prejudice to defendant because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue and certificate of readiness, requiring vacatur (see 22 NYCRR 202.21 [d], [e]; Allen v Hiraldo, 144 A.D.3d 434, 435 [1st Dept 2016]). Rather, the record shows a lack of diligence on defendant's part in seeking discovery (Nikqi v Dedona Contr. Corp., 117 A.D.3d 620, 620 [1st Dept 2014]).

  2. Jenkins v. Riverbay Corp.

    187 A.D.3d 543 (N.Y. App. Div. 2020)   Cited 6 times

    Defendant made no showing that unusual or unanticipated circumstances had developed after the note of issue was filed which required additional pretrial proceedings so as to avoid substantial prejudice (see 22 NYCRR § 202.21 [d]; Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 138, 707 N.Y.S.2d 137 [2d Dept. 2000] ). Rather, the record is clear that "[a]ny outstanding discovery is due to defendant['s] own inaction" ( Allen v. Hiraldo, 144 A.D.3d 434, 435, 41 N.Y.S.3d 213 [1st Dept. 2016] ). Accordingly, defendant's motion was properly denied.

  3. Drapper v. Horan

    164 A.D.3d 1192 (N.Y. App. Div. 2018)   Cited 5 times

    Defendants offered no reasonable explanation for their failure to notice a medical examination before the note of issue was filed ( Alvarez v. Feola, 140 A.D.3d 596, 596, 33 N.Y.S.3d 700 [1st Dept. 2016] ). Defendants also failed to demonstrate that additional treatment for an injury defendants were already aware of constitutes an "unusual or unanticipated circumstance" to warrant vacatur and a medical examination (see 22 NYCRR 202.21 [d]; Allen v. Hiraldo, 144 A.D.3d 434, 435, 41 N.Y.S.3d 213 [1st Dept. 2016] ; Schroeder v. IESI N.Y. Corp., 24 A.D.3d 180, 181, 805 N.Y.S.2d 79 [1st Dept. 2005] ; Arnold v. New York City Hous. Auth., 282 A.D.2d 378, 378, 723 N.Y.S.2d 369 [1st Dept. 2001] ).We have considered the remaining arguments and find them unavailing.

  4. Bundhoo v. Wendy'S

    152 A.D.3d 734 (N.Y. App. Div. 2017)   Cited 14 times

    However, after the 20–day period has expired, no such motion shall be allowed except for good cause shown (see 22 NYCRR 202.21 [e] ).Here, the defendants neither timely filed their motion, as it was made approximately four months after service of the note of issue, nor demonstrated good cause for their failure to timely make the motion (see Allen v. Hiraldo, 144 A.D.3d 434, 434–435, 41 N.Y.S.3d 213 ; Kelley v. Zavalidroga, 55 A.D.3d 1391, 864 N.Y.S.2d 819 ). Moreover, although a court, on its own motion may, at any time, vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with the requirements of 22 NYCRR 202.21 in some material respect (see 22 NYCRR 202.21 [e] ), here, the defendants did not demonstrate either that a material fact in the certificate of readiness was incorrect or that the certificate of readiness failed to comply with the rule in some material respect.

  5. Burbridge v. Soho Plaza Corp.

    150 A.D.3d 513 (N.Y. App. Div. 2017)   Cited 2 times

    Under the instant circumstances, Rowland's production of six pages of engineering materials and Gibble's deposition testimony post-note of issue do not constitute unusual or unanticipated circumstances (see 22 NYCRR 202.21 [d]; Allen v. Hiraldo, 144 A.D.3d 434, 435, 41 N.Y.S.3d 213 [1st Dept.2016] ; Price v. Bloomingdale's, 166 A.D.2d 151, 151–152, 560 N.Y.S.2d 288 [1st Dept.1990] ). In light of the foregoing, this Court need not reach the merits of plaintiffs' summary judgment motion.

  6. Yocum v. United States Tennis Assoc.

    2023 N.Y. Slip Op. 30834 (N.Y. Sup. Ct. 2023)

    the note of issue, and Hy-Safe Technology fails to indicate any unusual or unanticipated circumstances justifying these late demands, defendants owed no obligation to respond to the demands. 22 N.Y.C.R.R. § 202.21(d): Arons v. Jutkowitz, 9 N.Y.3d 393, 411 (2007); Palmiero v. 417 E. 9th St. Assoc, LLC, 167 A.D.3d 472, 472 (1st Dep't 2018); Prevost v. One Citv Block LLC, 155 A.D.3d 531, 537 (1st Dep't 2017); Allen v. Hiraldo, 144 A.D.3d 434, .435 (1st Dep't 2016). Therefore the court denies Hy-Safe Technology's motion to preclude evidence.

  7. Salomon v. United States Tennis Ass'n

    2022 N.Y. Slip Op. 30610 (N.Y. Sup. Ct. 2022)

    The USTA defendants do not show that they ever demanded these authorizations before the note of issue, nor that the need for them is a circumstance that was unanticipated and has developed since the note of issue, nor that they could not have been sought, compelled via a motion, or provided for in a preliminary, compliance, or status conference order before the note of issue. 22 N.Y.C.R.R. § 202.21(d); Arons v. Jutkowitz, 9 N.Y.3d at 411; Palmiero v. 417 E. 9th St. Assoc, LLC, 167 A.D.3d 472, 472 (1st Dep't 2018); Prevost v. One City Block LLC, 155 A.D.3d 531, 537 (1st Dep't 2017); Allen v. Hiraldo, 144 A.D.3d 434, 435 (1st Dep't 2016).

  8. Safer v. City of New York

    2022 N.Y. Slip Op. 30325 (N.Y. Sup. Ct. 2022)

    The Court denies Century Waste's motion as untimely. Century Waste "failed to make the motion within 20 days after service of the note and certificate [of readiness]" as required by 22 NYCRR 202.21(e), "nor did they show good cause for the delay" (Allen v Hiraldo. 144 A.D.3d 434, 435 [1st Dept 2016] [internal citations omitted]). "To satisfy the requirement of good cause, the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice" (Ferraro v N. Babylon Union Free School Dist., 69 A.D.3d 559, 561 [2d Dept 2010] [internal citations omitted]).

  9. Bronx Mgmt., Inc. v. Dalal Med. PC

    2020 N.Y. Slip Op. 33211 (N.Y. Sup. Ct. 2020)

    A motion brought under this subsection must be made within 20 days after service of the note of issue and certificate of readiness. Although defendant did not formally move for relief within 20 days after the date the note of issue was filed, defendant has demonstrated good cause for the delay (see Allen v Hiraldo, 144 AD3d 434, 434 [1st Dept 2016] [denying an untimely motion to vacate the note of issue and certificate of readiness where the defendants failed to demonstrate good cause for the delay]). Defendant contacted the court two weeks after plaintiffs filed the note of issue to request a conference to resolve the outstanding discovery (NYSCEF Doc No. 98, Schlesinger affirmation, ¶ 13).

  10. Smith v. N. Manhattan Nursing Home, Inc.

    70 Misc. 3d 891 (N.Y. Sup. Ct. 2020)   Cited 3 times

    Defendant was provided the opportunity for such disclosure, however, before the note of issue was filed; received the bills on which defendant now relies well before the note of issue was filed; and does not point to any "unusual or unanticipated circumstances" after the note of issue was filed requiring plaintiff to provide further disclosure. 22 N.Y.C.R.R. § 202.21(d) ; Arons v. Jutkowitz , 9 N.Y.3d 393, 411, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007) ; Palmiero v. 417 E. 9th St. Assoc., LLC , 167 A.D.3d 472, 472, 88 N.Y.S.3d 27 (1st Dep't 2018) ; Prevost v. One City Block LLC , 155 A.D.3d 531, 537, 65 N.Y.S.3d 172 (1st Dep't 2017) ; Allen v. Hiraldo , 144 A.D.3d 434, 435, 41 N.Y.S.3d 213 (1st Dep't 2016).