Opinion
9757/13
08-17-2017
Rose Lyons and MICHAEL LYONS, Plaintiffs, v. Brooklyn Bureau of Community Services, THE BHARATI CENTER, INC., a/k/a INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS (ISKCON), a/k/a HARE KRISHNA CENTER; ISKCON OF BROOKLYN PROPERTIES, INC., a/k/a INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS (ISKCON), a/k/a HARE KRISHNA CENTER, a/k/a BAHRTI CENTER, INC., ISKCON OF NEW YORK, INC., a/k/a INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS (ISKCON) a/k/a HARE KRISHNA CENTER a/k/a BHARATI CENTER, INC., and CONGREGATION MOUNT SINAI, Defendants.
Attorneys for Plaintiff Sullivan, Papain, Block 120 Broadway New York New York 10271 212-732-9000 Attorney for the Defendant Kaufman, Dolowich & Voluck, LLP 135 Crossways Park Drive Suite 201 Woodbury, New York 516-681-1100
Attorneys for Plaintiff Sullivan, Papain, Block 120 Broadway New York New York 10271 212-732-9000 Attorney for the Defendant Kaufman, Dolowich & Voluck, LLP 135 Crossways Park Drive Suite 201 Woodbury, New York 516-681-1100 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion by defendant Brooklyn Bureau of Community Services (hereinafter BBCS), filed on June 29, 2017 with the Kings County Clerk's Office (hereinafter KCCO) under motion sequence number five, for an order: (1) striking the note of issue and certificate of readiness pursuant to CPLR 3402 and 22 NYCRR 202.21 (e); (2) directing the plaintiffs to comply with all discovery demands; or in the alternative, (3) precluding the plaintiffs from offering any evidence at trial as to any subject which discovery has not been provided; and (3) extending BBCS's time to move for summary judgment.
-Notice of motion
-Affirmation in support
-Exhibits A-H
Affirmation in opposition
-Exhibits A-I
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion by defendants The Bharati Center, Inc. a/k/a International Society for Krishna Consciousness (ISKCON) and Congregation Mount Sinai (CMS), filed on July 6, 2017 with the KCCO under motion sequence number six, for an order: (1) striking the note of issue and certificate of readiness pursuant to CPLR 3402 and 22 NYCRR 202.21(e); (2) directing the plaintiffs to comply with all discovery demands; and (3) extending their time to move for summary judgment.
-Notice of motion
-Affirmation in support
-Exhibits A-E
-Affidavit in opposition
-Exhibits A-I
BACKGROUND
On May 28, 2013, Rose Lyons (hereinafter the injured plaintiff) and her husband Michael Lyons, suing derivatively, commenced the instant action for damages for personal injury against BBCS by filing a summons and verified complaint (hereinafter the commencement papers) with the KCCO. BBCS interposed a verified answer dated June 28, 2013.
The verified complaint alleges in pertinent part the following facts. On February 22, 2013, the injured plaintiff tripped and fell due to a dangerous and defective condition on the sidewalk in front of a property located at 285 Schermerhorn Street, Brooklyn, New York (hereinafter the subject premises). BBCS allegedly owned, occupied and managed the subject premises including the sidewalk appurtenant and adjacent thereto. BBCS allegedly had a duty to maintain the sidewalk in front of the subject premises in a reasonably safe condition and failed to do so.
By service of an amended complaint dated July 17, 2014, plaintiffs brought direct claims against the third party defendants. Defendants Bharati Center Inc. a/k/a ISKCON and Congregation Mount Sinai interposed an answer to the amended complaint dated May 5, 2015.
On March 10, 2014, the injured plaintiff was deposed. On April 6, 2014, her husband was deposed. By verified bill of particulars dated August 16, 2013, the injured plaintiff notified the defendants of an injury to her left knee requiring an arthroscopy. By supplemental verified bill of particulars dated October 29, 2013, the injured plaintiff notified the defendants that the injury to her left knee required future surgical intervention. On June 15, 2017, the plaintiffs filed a note of issue.
LAW AND APPLICATION
22 NYCRR 202. 21 (e) provides as follows:
Vacating Note of Issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the 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 this section in some material respect.BBCS's Motion
BBCS's motion is supported by an affirmation of David Group, its counsel, and six annexed exhibits labeled A through H. Exhibit A is the plaintiffs' commencement papers. Exhibit B is BBCS's verified answer dated June 28, 2013. Exhibit C is a copy of the transcript of the injured plaintiff's deposition conducted on March 10, 2014. Exhibit D is a copy of the transcripts of her husband's deposition conducted on April 6, 2017. Exhibit E is a copy of plaintiffs' bill of particulars and supplemental bill of particulars provided to BBCS. Exhibit F and G are copies of two letters sent by BBCS's counsel to plaintiffs' counsel dated April 24 and June 14, 2017, respectively. The April 24, 2017 letter requested new authorization for all of the treatment, surgery and physical records related to the injured plaintiff's anticipated left knee surgery. It also requested a supplemental bill of particulars. The June 14, 2017 letter was a follow up to the April 24, 2017 letter. It stated that the plaintiffs had not yet responded to the earlier letter and requested the same items again. Exhibit H is a copy of the note of issue filed on June 15, 2017.
Uniform Court Rule § 202.7 provides that no motion relating to disclosure shall be filed with the court unless it is accompanied by "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." Such affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions." (See 22 NYCRR § 202.7[c])
David Group's affirmation fails to indicate the time, place and nature of any consultation with plaintiffs' counsel, the issues discussed, and any resolutions. While he does refer to and has annexed two letters sent to plaintiffs' counsel, merely sending letters to opposing counsel is not sufficient to satisfy the requirement of 22 NYCRR § 202.7(c). There is nothing in either letter indicating that BBCS's counsel actually conferred with plaintiffs' counsel in a good faith attempt to resolve the dispute (241 Fifth Ave. Hotel, LLC v. GSY Corp., 110 AD3d 470, 472 [2nd Dept 2013], citing Mironer v. City of New York, 79 AD3d 1106, 1107—08 [2nd Dept 2010]). On this ground alone, defendant's motion must be denied. (Id.).
Furthermore, BBCS counsel has admitted that the injured plaintiff did provide two new authorizations in response to its request for same. BBCS contends that the injured plaintiff failed to agree to a further deposition and an additional independent medical examination based on her anticipated need for further surgery of the left knee and instead prematurely filed a note of issue before discovery had been completed.
BBCS seeks an order striking the note of issue, vacating the certificate of readiness, directing the plaintiff to comply with all discovery demands; or in the alternative, precluding the plaintiff from offering any evidence at trial as to any subject in which discovery has not been provided. BBCS also seeks an order extending it time to move for summary judgment.
Nothing contained is BCCS's motion papers, however, demonstrates that it made a demand of the injured plaintiff to appear for a further deposition or for an additional independent medical examination. The only items referred to in BCCS's letter to plaintiffs' counsel was a request for additional authorizations and a supplemental bill of particulars relating to the need for future left knee surgery. BCCS concedes that it thereafter received a supplemental bill of particulars and additional authorizations from the plaintiffs. BCCS has not claimed that the items provided were not in compliance with its demand. Rather, it claims that further discovery is needed. Moreover, nothing in the affirmation of BBCS's counsel explained in what respects the case was not ready for trial. Nor did it show that a material fact in the certificate of readiness was incorrect.
Under these circumstances, BCCS did not and cannot establish that the injured plaintiff has failed to comply with any outstanding discovery demands. There is, therefore, no factual basis to compel further disclosure from the plaintiffs or to impose any sanctions related to any alleged disclosure violations. Nor is there any factual basis to strike the note of issue.
Furthermore, BCCS presented no good cause for extending its time to make a summary judgment motion (cf. Abdalla v Mazl Taxi, Inc., 66 AD3d 803 [2nd Dept 2009]). The motion by BBCS is denied without prejudice.
ISKCON and CMS's Motion
ISKCON and CMS also seek an order striking the note of issue, compelling the plaintiffs to comply with all discovery demands, and extending their time to move for summary judgment. Their motion is supported by an affirmation in support of the motion and a separate affirmation of good faith by Frederick D. Schmidt, their counsel, and five annexed exhibits labeled A through E. Exhibit A is a copy of the commencement papers and BBCS's answer dated June 28, 2013. Exhibit B is described as a copy of all other pleadings. Exhibit C is a copy of the verified bill of particulars and supplemental verified bill of particulars plaintiffs provided to BBCS, the verified bill of particulars plaintiffs provided to ISKCON and CMS; and the third supplemental verified bill of particulars that plaintiffs provided to BCCS. Exhibit D is a copy of the note of issue and certificate of readiness. Exhbit E is a copy of an e-mail dated June 28, 2017 purportedly sent to plaintiffs' counsel.
ISKCON and CMS's motion papers suffers from the same procedural deficiency as BBCS's motion papers. In particular, the affirmations of Frederick D. Schmidt, their counsel, also fail to indicate the time, place and nature of any consultation with plaintiffs' counsel, the issues discussed, and any resolutions. While his affirmation of good faith does refer to an electronic letter sent to plaintiffs' counsel, the sending of this one e-mail alone is not sufficient to satisfy the requirement of 22 NYCRR § 202.7 (c). There is nothing in e-mail indicating that ISKCON and CMS's counsel actually conferred with plaintiffs' counsel in a good faith attempt to resolve the alleged disclosure dispute (241 Fifth Ave. Hotel, LLC v. GSY Corp., 110 AD3d 470, 472 [2nd Dept 2013], citing Mironer v. City of New York, 79 AD3d 1106, 1107—08 [2nd Dept 2010]).
Accordingly, ISKCON and CMS did not establish that the plaintiffs have failed to comply with any outstanding discovery demands. Once again, there is no basis to impose any sanctions related to any alleged disclosure violations or to strike the note of issue. Furthermore, ISKCON and CMS have also failed to show good cause for extending its time to make a summary judgment motion.
The motion by The Bharati Center, Inc. a/k/a International Society for Krishna Consciousness and Congregation Mount Sinai is denied without prejudice.
CONCLUSION
The motion by Brooklyn Bureau of Community Services for an order striking the note of issue and certificate of readiness pursuant to CPLR 3402 and 22 NYCRR 202.21 (e) is denied.
The motion by Brooklyn Bureau of Community Services for an order directing the plaintiffs to comply with all discovery demands is denied.
The motion by Brooklyn Bureau of Community Services for an order precluding the plaintiffs from offering certain evidence at trial is denied.
The motion by Brooklyn Bureau of Community Services for an order extending BBCS's time to move for summary judgment is denied.
The motion by The Bharati Center, Inc. a/k/a International Society for Krishna Consciousness and Congregation Mount Sinai for an order striking the note of issue and certificate of readiness pursuant to CPLR 3402 and 22 NYCRR 202.21 (e) is denied.
The motion by The Bharati Center, Inc. a/k/a International Society for Krishna Consciousness and Congregation Mount Sinai for an order directing the plaintiffs to comply with all discovery demands is denied.
The motion by The Bharati Center, Inc. a/k/a International Society for Krishna Consciousness and Congregation Mount Sinai for an order extending their time to move for summary judgment is denied.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.