Opinion
Index No. 618291/2019 CAL. No. 202100173MV Mot. Seq. Nos. 002 MD003 MG
01-13-2022
TONIA L. CRAWFORD, Plaintiff, v. LYNN A. WESTLEY and PASQUALE P. CALIFANO, Defendants
STEVEN D. DOLLINGER & ASSOCIATES Attorney for Plaintiff RUSSO & GOULD, LLP Attorney for Defendant Westley JAMES G. BILELLO & ASSOCIATES Attorney for Defendant Califano
Unpublished Opinion
MOTION DATE 7/22/21 (002)
MOTION DATE 8/26/21 (003)
ADJ. DATE 8/26/21
STEVEN D. DOLLINGER & ASSOCIATES Attorney for Plaintiff
RUSSO & GOULD, LLP Attorney for Defendant Westley
JAMES G. BILELLO & ASSOCIATES Attorney for Defendant Califano
PRESENT: Hon. GEORGE M. NOLAN Justice of the Supreme Court
George M. Nolan Judge
Upon the following papers read on these motions for summary judgment and vacate note of issue: Notice of Motion/ Order to Show Cause and supporting papers by defendant Westlev, dated June 22,2021 and August 12, 20[21]; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated August 6, 2021 and August 13,2021; Replying Affidavits and supporting papers by defendant Westley, dated August 16,2017 and August 17,2021; Other; it is
ORDERED that the motions (#002 and #003) by defendant Lynn Westley hereby are consolidated for the purposes of this determination; and it is
ORDERED that the motion (#002) by defendant Lynn Westley seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied, without prejudice to renewal; and it is further
ORDERED that the motion (#003) by defendant Lynn Westley for, inter alia, an order vacating the note of issue and certificate of readiness is granted.
Plaintiff Tonia Crawford commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred on the eastbound Long Island Expressway, near exit 59, in the Town of Islip on April 25, 2018. It is alleged that the accident occurred when the vehicle owned and operated by defendant Lynn Westley struck the rear of the vehicle owned and operated by defendant Pasquale Califano while it was stopped in traffic. As a result of the impact between the Westley and Califano vehicles, the Califano vehicle was pushed forward into the rear of the stopped vehicle owned and operated by plaintiff. Thereafter, defendant Califano moved, unopposed, for summary judgment dismissing the complaint against him on the grounds that he was not the proximate cause of the subject accident's occurrence. By order of this Court, dated June 7, 2021. the undersigned dismissed all claims against defendant Pasquale Califano.
Defendant Westley now moves for an order vacating the note of issue and striking the matter from the trial calendar, arguing the certificate of readiness contains a material defect since discovery is not complete. Specifically, defendant Westley asserts that, approximately five months after the filing of the note of issue, she learned that plaintiff was involved in a subsequent motor vehicle accident on October 29, 2020, which allegedly caused injury to the same body parts she alleged were injured in the subject accident, and that she immediately served notices for a further deposition and discovery and inspection, including a further independent medical examination, on July 30, 2021. However, defendant Westley states that plaintiff s counsel advised that she would not provide any additional discovery.
Plaintiff opposes the motion on the grounds that it is untimely, since the note of issue was filed approximately five month ago, that defense counsel signed the certificate of readiness stating that discovery was complete, and that defendant Westley failed to come forth with a legal or factual justification for vacating the note of issue. Plaintiff further contends that defendant Westley has failed to show that the injuries she sustained in the subsequent accident were the same as the ones alleged in the subject accident.
CPLR 3402 (a) provides that the note of issue may be filed at any time after issue is joined or 40 days after service of the summons irrespective of the joinder of issue, and must be accompanied by whatever date is required by the applicable rules of the court. The purpose of a note of issue and certificate of readiness is to assure that cases which appear on the court's trial calendar are, in fact, ready for trial (Tirado v Miller, 75 A.D.3d 153, 156, 901 N.Y.S.2d 358 [2d Dept 2010], quoting Mazzara v Town of Pittsford, 30 A.D.2d 634, 634, 290 N.Y.S.2d 435 [4th Dept 1968]). Moreover, a certificate of readiness certifies that all discovery is complete, waived or not required, and that the action is ready for trial (see Unified Rules for Trial Courts [22 NYCRR] § 202.21 [b]). The effect of a statement of readiness is to ordinarily foreclose further discovery' (see Tirado v Miller, 75 A.D.3d 153, 901 N.Y.S.2d 358 [2d Dept 2010]).
Vacatur of the note of issue is governed by section 202.21 of the Uniform Rules for Trial Courts. This provision states, in pertinent part, that where a party timely moves, upon affidavit, to vacate the note of issue, the party only needs to show 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 (e) in some material respect" (Vargas v Villa Josefa Realty Corp., 28 A.D.3d 389, 390, 815 N.Y.S.2d 30 [1st Dept 2006]; see Witherspoon v Surat Realty Corp., 82 A.D.3d 1087, 918 N.Y.S.2d 889 [2d Dept 2011]; Shoop v Augst, 305 A.D.2d 1016, 758 N.Y.S.2d 747 [4th Dept 2003]; Aviles v 938 SCY Ltd., 283 A.D.2d 935, 725 N.Y.S.2d 256 [4th Dept 2001]; cf. Audiovox Corp, v Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137 [2d Dept 2000]). Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (d) also provides that "where unusual or unanticipated circumstances develop subsequent to the filing of the note of issue and certificate of readiness, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by an affidavit, may grant permission to a movant to conduct such necessary
Here, the Court's computerized records show that the note of issue was filed on February' 23, 2021, and since defendant Westley did not move within the requisite 20 days of the filing, she is required to show unusual or unanticipated circumstances developed subsequent to the filing of the note of issue requiring additional pre-trial proceedings to prevent substantial prejudice (see Lopez v Retail Prop. Trust, 84 A.D.3d 891, 921 N.Y.S.2d 906 [2d Dept 2011]; Wigand v Modlin. 82 A.D.3d 1213, 919 N.Y.S.2d 868 [2d Dept 2011]). In the instant circumstances, defendant Westley has established that unusual and unanticipated circumstances developed following the filing of the note of issue requiring additional pretrial proceedings to prevent substantial prejudice to her defense (see Uniform Rules for Trial Cts [22 NYCRR] 202.21 [e]; Gelin v New York City Tr. Auth., 189 A.D.3d 789, 137N.Y.S.3d 452 [2d Dept 2020]; Singh v 244 W. 39th St. Realty, Inc., 65 A.D.3d 1325, 886 N.Y.S.2d 226 [2d Dept 2009]; Karakostas v Avis Rent A Car Sys., 306 A.D.2d 381, 761 N.Y.S.2d 283 [2d Dept 2003]). Defendant Westley's discovery', after the filing of the note of issue, and after plaintiff sat for her deposition and appeared for her independent medical examination, that she had been involved in a subsequent motor vehicle accident on October 29, 2020, as well as her refusal to respond to defendant Westley's supplemental discovery demands regarding her injuries in the subsequent motor vehicle accident, constitutes unusual or unanticipated circumstances warranting further discovery (see Jones v Seta, 143 A.D.3d 482, 38 N.Y.S.3d 422 [1st Dept 2016]; Stock v Morizzo, 92 A.D.3d 672, 938 N.Y.S.2d 206 [2d Dept 2012]; Sorrentino v Fedorczuk. 85 A.D.3d 759, 925 N.Y.S.2d 510 [2d Dept 2011); see also Perla v Wilson, 287 A.D.2d 606, 732 N.Y.S.2d 35 [2d Dept 2001 ]). Defendant Westley also is entitled to a supplemental deposition of plaintiff concerning the subsequent motor vehicle accident and related treatment, a response to the notice for discovery and inspection dated July 30, 2021, and a further physical examination of plaintiff regarding the injuries allegedly sustained in the motor vehicle accident on October 29, 2020.
Moreover, plaintiff has not shown that she will be severely prejudiced by having to provide defendant Westley with such discovery, since a trial date has not yet been assigned (see Cabrera v Abaev, supra; Suarez v Shapiro Family Realty Assoc., LLC, 149 A.D.3d 526, 53 N.Y.S.3d 23 [1st Dept 2017]; Baulieu v Ardsley Assoc. L.P.. 84 A.D.3d 666, 923 N.Y.S.2d 326 [1st Dept 2011]). CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The standard requires disclosure "of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publihing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449 [1968]; Bustos v Lenox Hill Hosp., 29 A.D.3d 424. 425, 816 N.Y.S.2d 24 [1st Dept 2006]). Accordingly, defendant Westley's motion to vacate the note of issue is granted to the extent that defendant shall have 90 days from the entry date of the order to conduct any and all supplemental discovery, including but not limited to a further independent medical examination of plaintiff. The Court cautions all parties to cooperate regarding all further correspondence and discovery exchanges in this action. .