Opinion
18082/00.
Decided September 10, 2008.
The plaintiff is represented by the law firm of Bader, Yakaitis Nonnenmacher, LLP by Karen O'Reilly., of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Mark Galen Towes, Esq., of counsel, the defendants Yeong Bae Chio and Lucia H. Choi are represented by the law firm of Jacobson Schwartz by Paul Goodovitch, Esq., of counsel.
In this 2000 personal injury action arising from a trip and fall on a raised flagstone, plaintiff moves six weeks after filing a note of issue and certificate of readiness for an order pursuant to CPLR § 3126 to strike the defendant City of New York's (City) answer for failure to comply with prior discovery orders.
Plaintiff claims that the City has not fully responded to a April 10, 2006 Supplemented Notice of Inspection. The City disagrees and argues that it has responded and has complied with all court orders.
The Court will not review the contested positions of the parties relating to the discovery dispute. Plaintiff chose to file a note of issue and certificate of readiness with the Court. Plaintiff filed a certificate of readiness where he represented to the Court that "discovery proceedings known to be necessary completed". In addition, plaintiff filed an"Affirmation of Compliance". In this self designed form, plaintiff advised the Court of "full compliance with the directives" of a August 17, 2007 preliminary conference order and that "depositions have been held". However, plaintiff, contrary to the applicable Uniform Rules for Trial Courts § 202.21, inserted a paragraph that "the only remaining discovery outstanding is a discovery and inspection response. . . to be had by the City".
When questioned at oral argument about this modification of the statement of readiness, plaintiff's counsel advised the Court of some unspecified Brooklyn rule. In effect stating, this is how we do it in Brooklyn. While the Court has only been on bench the since January 1, 2008, the Court is unaware of any "Brooklyn" exception to the Uniform Court Rules.
Plaintiff chose to file a note of issue and plaintiff's unilateral modification of the statement of readiness does not alter the impact of the rule. As the court noted in ( Price v Brody, 7Ad2d 204 [ 1st Dept 1959]):
It also follows that where a plaintiff places a cause upon the calendar by the filing of a note of issue and certificate of readiness without having taken the defendant's deposition such action constitutes a waiver of plaintiff's right to take the deposition. The provision for the placement of causes upon the trial calendar binds both plaintiff and defendant .
In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs' motion to vacate defendant's notice of examination before trial. ( Amkraut v Roanoke Garment Co., 5 A D 2d 863.) The oft-enunciated policy of encouraging pretrial disclosure in most cases in and of itself is not sufficient to excuse a party's failure to comply with the Special Rule Respecting Calendar Practice.
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In all cases involving this rule however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it. (See also ( Chichilnisky v. Trustees of Columbia University, 52 A.D. 3d 206 [1st Dept 2008]); Escourse v City of New York , 27 AD3d 319 [1st Dept 2006].)
The Court elects not to exercise its discretion to permit plaintiff to assert discovery disputes after the filing of a note of issue. Plaintiff has failed to make the required showing under Price v Brady of "special, unusual or extraordinary circumstances" which would warrant a deviation from the court rule. Accordingly, plaintiff's motion is denied.
The foregoing constitutes the decision and order of the Court.