Opinion
Index No. 153150/2018 Third-Party Index No. 595739/2018
06-06-2022
MANSOUR GOLDMAN, Plaintiff, v. MANOUCHER POURAT, CENTRAL MANAGEMENT CORP., Defendant. CENTRAL MANAGEMENT CORP. Plaintiff, v. WINFIELD SECURITY CORPORATION, BUILDING SECURITY SERVICES OF NY, INC. Defendant. MANOUCHER POURAT Plaintiff, v. BITAZAMIR Defendant. WINFIELD SECURITY CORPORATION Plaintiff, v. EVER BRIGHT REALTY CORP. Defendant. Second Third-Party Index No. 595118/2020 Third Third-Party Index No. 595819/2021 Motion Seq. No. 003
Unpublished Opinion
MOTION DATE 04/29/2022.
PRESENT: HON. WILLIAM PERRY, Justice.
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE/JURY
Upon the foregoing documents, defendant/third party plaintiff Manoucher Pourat's motion and cross motion, motion sequence 003, seeking an order pursuant to 22 NYCRR 202-21 (e) vacating and striking plaintiffs Note of Issue and Certificate of Readiness, and striking this action from the Trial Calendar, submitted to the court without opposition, is granted as discovery in this action is not complete.
A note of issue should be vacated where, as here, it is based upon a certificate of readiness that incorrectly states that all discovery has been completed (see Ortiz v Arias, 285 A.D.2d 390, 390, 727 N.Y.S.2d 879 [1st Dept 2001]; Savino v Lewittes, 160 A.D.2d 176,177-178, 553 N.Y.S.2d 146 [1st Dept 1990]).
Given the general policy to encourage "open and far-reaching pretrial discovery" (Kavanagh v Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954, 705 N.E.2d 1197, 683 N.Y.S.2d 156 [1998] [internal quotation marks omitted]), the court finds that there is material discovery that remains outstanding, and that plaintiff prematurely filed the note of issue. Specifically, plaintiff must respond to defendant's demand for medical authorizations dated July 15, 2021, and defendant's notice for discovery and inspection dated April 6, 2022, within 20 days from service of a copy of this order with notice of entry. (NYSCEF Doc. Nos. 156,157). In addition, plaintiff must respond to counter claimant/third party plaintiffs demand for discovery and inspection dated April 1, 2019, demand for medical reports and authorizations dated March 25, 2019, and demand for a verified bill of particulars dated March 26, 2019, within 20 days from service of a copy of this order with notice of entry. (NYSCEF Doc. Nos. 178,180,182).
Plaintiff shall appear for a deposition on or before August 5,2022 and defendant/third party plaintiff shall appear for a deposition on or before August 31,2022, at a time and place convenient to all parties. Plaintiff shall be made available for a physical examination within 30 days after completion of plaintiff s deposition, before a physician, to be designated by defendant/third party within 20 days from service of a copy of this order with notice of entry.
Accordingly, it is
ORDERED that the motion to vacate the note of issue is granted and the note of issue is vacated and the case is stricken from the trial calendar; and it is further
ORDERED that all further discovery in this matter shall be conducted as noted herein and completed within 120 days from service of a copy of this order with notice of entry; and it is further
ORDERED that, within 15 days from 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 15 days from completion of discovery as herein above directed, 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 [the plaintiff shall move to reinstate the note of issue as provided in Uniform Rule 202.21 (f)]; and it is further
ORDERED that such 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).