Kelley v. Zavalidroga

10 Citing cases

  1. Kelley v. Zavalidroga

    11 N.Y.3d 911 (N.Y. 2009)

    Decided January 15, 2009. Reported below, 55 AD3d 1391, 1392. Motion for leave to appeal etc. dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it ( see NY Const, art VI, § 3 [b]; CPLR 5602).

  2. Kelley v. Zavalidroga

    11 N.Y.3d 921 (N.Y. 2009)

    January 15, 2009. Appeal from the 4th Dept: 55 AD3d 1391, 1392. Appeals Dismissed Pursuant to Rules of Practice of Court of Appeals or on Consent.

  3. 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.

  4. Allen v. Hiraldo

    144 A.D.3d 434 (N.Y. App. Div. 2016)   Cited 14 times

    Supreme Court properly denied as untimely the motion to vacate the note of issue and certificate of readiness. Defendants failed to make the motion within 20 days after service of the note and certificate, nor did they show good cause for the delay (see 22 NYCRR 202.21 [e]; Kelley v. Zavalidroga, 55 A.D.3d 1391, 864 N.Y.S.2d 819 [4th Dept.2008], lv. dismissed 11 N.Y.3d 911, 873 N.Y.S.2d 525, 901 N.E.2d 1278 [2009] ). They also failed to show, by way of affidavit, that plaintiff's deposition and physical examination were required to “prevent substantial prejudice” because “unusual or unanticipated circumstances” had developed subsequent to the filing of the note and certificate (22 NYCRR 202.21 [d]; Schroeder v. IESI N.Y. Corp., 24 A.D.3d 180, 181, 805 N.Y.S.2d 79 [1st Dept. 2005] ; Price v. Bloomingdale's, 166 A.D.2d 151, 151–152, 560 N.Y.S.2d 288 [1st Dept.1990] ). We reject defendants' argument that the motion court should have considered their motion to be a motion in limine.

  5. Allen v. Hiraldo

    2016 N.Y. Slip Op. 7149 (N.Y. App. Div. 2016)

    Supreme Court properly denied as untimely the motion to vacate the note of issue and certificate of readiness. Defendants failed to make the motion within 20 days after service of the note and certificate, nor did they show good cause for the delay (see 22 NYCRR 202.21[e]; Kelley v Zavalidroga, 55 AD3d 1391 [4th Dept 2008], lv dismissed 11 NY3d 911 [2009]). They also failed to show, by way of affidavit, that plaintiff's deposition and physical examination were required to "prevent substantial prejudice" because "unusual or unanticipated circumstances" had developed subsequent to the filing of the note and certificate (22 NYCRR 202.21[d]; Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]; Price v Bloomingdale's, 166 AD2d 151, 151-152 [1st Dept 1990]).

  6. Kelley v. Zavalidroga

    55 A.D.3d 1392 (N.Y. App. Div. 2008)

    It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Same memorandum as in Kelley v Zavalidroga ( 55 AD3d 1391).

  7. Kelley v. Zavalidroga

    55 A.D.3d 1392 (N.Y. App. Div. 2008)

    It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Same memorandum as in Kelley v Zavalidroga ( 55 AD3d 1391).

  8. Strong v. Delemos

    2015 N.Y. Slip Op. 32955 (N.Y. Sup. Ct. 2015)

    Here, defendants have established, prima facie, that a material fact in the certificate of readiness is incorrect, because it sets forth that all discovery has been completed (see JacobsvJohnston, 97 AD3d 538, 948 NYS2d 321 [2d Dept 2012]; Moss v McKelvey, 32 AD3d 1281, 822 NYS2d 198 [4th Dept 2006]; Shoop v Augst, supra; Aviles v 938 SCY Ltd., supra; Oritz v Arias, 285 AD2d 390, 727 NYS2d 879 [1st Dept 2001]). Furthermore, defendants' motion, dated April 22, 2014, was made within 20 days after the service of the note of issue and certificate of readiness (see Jacobs v Johnston, 97 AD3d 538, 948 NYS2d 321 [2d Dept 20102]; Torres vSaint Vincents Catholic Med. Ctrs., 71 AD3d 873, 895 NYS2d 861 [2d Dept 2010]; Munoz v 147 Corp., 309 AD2d 647, 767 NYS2d 1 [1st Dept 2003]; Rizzo v Simone, 287 AD2d 609, 731 NYS2d 857 [2d Dept 2001]; Perla v Wilson, 287 AD2d 606, 732 NYS2d 35 [2d Dept 2001]; cf. Kelley v Zavalidrogai, 55 AD3d 1391, 864 NYS2d 819 [4th Dept 2008]; Mark v Morrison, 275 AD2d 1027, 714 NYS2d 167 [4th Dept 2000]). Plaintiff, in opposition, failed to demonstrate that he has fully complied with the notices for discovery and inspection at issue or the July 11, 2012 compliance conference order.

  9. LISI v. INCORPORATED VILLAGE

    2010 N.Y. Slip Op. 32065 (N.Y. Sup. Ct. 2010)

    Where, as here, no basis for disqualification pursuant to Judiciary Law § 14 is presented, the question of recusal is committed to the discretion and personal conscience of the court ( Matter of O'Donnell v Goldenberg, 68 AD3d 1000, 890 NYS2d 331; Matter of Imre v Johnson, 54 AD3d 427, 863 NYS2d 473; see also, People v Moreno, 70 NY2d 403, 521 NYS2d 663; Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 832 NYS2d 675; Ficalora v Town Bd. Gov't, 276 AD2d 666, 714 NYS2d 353). To justify recusal under these circumstances, the petitioners must demonstrate actual bias against them, rather than a mere speculative possibility of bias ( see, Kelley v Zavalidroga, 55 AD3d 1391, 864 NYS2d 819 quotingRumsey v Niebel, 286 AD2d 564, 565, 730 NYS2d 591). Moreover, a judge has an obligation not to recuse himself or herself, even if sued in connection with his or her duties, unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance ( Robert Marini Builder Inc.v Rao, 263 AD2d 846, 694 NYS2d 208).

  10. Jurman v. Doctor's Associates Inc.

    2009 N.Y. Slip Op. 30548 (N.Y. Sup. Ct. 2009)

    Aff. in Opp. ¶ 6. However, under 22 NYCRR 202.21(e), a party to the action does not have 20 days from the filing of the Note of Issue but "20 days after service of a note of issue and certificate of readiness" to bring the motion to vacate. 22 NYCRR 202.21(e) (emphasis supplied); see Kelley v. Zavalidroga U, 864 N.Y.S.2d 819, 820 (4th Dept. 2008). Plaintiff does not assert that she ever served the note of issue and certificate of readiness on movant and does not annex proof of service.