Opinion
Index Nos. 711021/2018 5 6
01-21-2022
PATRICIA SCOTT, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY, INC., PHILIP L. WHITE, JR. (BUS OPERATOR) and REGINALD SCOTT, Defendants.
Unpublished Opinion
Motion Dates: April 13, 2021, July 27, 2021
DECISION/ ORDER
HONORABLE JOSEPH RISI A. J. S. C.
The following EF numbered papers on the motions (sequence no. 5) by Defendants The New York City Transit Authority, Metropolitan Authority, MTA Bus Company, Inc. and Philip L. White's ("Transit") for: an Order, inter alia, striking the plaintiff's complaint, striking the note of issue, or in the alternative, extending their time to move for summary judgment, compelling plaintiff to complete discovery; and for an Order (sequence no. 6), inter alia, striking plaintiff's two supplemental/amended bills of particulars
Papers - Numbered
Sequence No. 5
Notice of Motion, Affirmation in Support, Exhibits, Service..................... EF 60 - 70
Affirmation in Opposition, Exhibits, Service.............................................. EF 71 - 75
Reply, Exhibits, Service .............................................................................. EF 76 - 77
Sequence No. 6
Notice of Motion, Affirmation in Support, Exhibits, Service ..................... EF 78 - 87
Affirmation in Opposition, Exhibits, Service .............................................. EF 93 - 94
Reply, Exhibits, Service .............................................................................. EF 95 - 96
Upon the foregoing papers, the motions are consolidated for determination as follows:
Plaintiff commenced this action by filing a summons and complaint on July 18, 2018, seeking damages for personal injuries allegedly sustained as a result of a motor vehicle accident.
Defendant Transit filed an answer with cross-claim on October 5, 2018. Defendant Reginald Scott filed an answer with cross claims on October 21, 2019.
Defendant Transit now moves to vacate the second note of issue citing incomplete discovery. Defendant Transit alleges that plaintiff has failed to comply with the So-Ordered Stipulation dated September 14, 2020. The Court notes that this matter was addressed in a prior Court Order dated April 30, 2021 directing the plaintiff to comply with said stipulation. While defendants failed to annex an affirmation of good faith to sequence 6, the Court, in the interest of justice, will consider the motion.
As pointed out by our Court of Appeals, "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (citations omitted)" (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 N.Y.3d 514 [2005]). Pursuant to the foregoing, and with the understanding that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 N.Y.2d 118, 124 [1999]). The parties are once again, reminded of their obligation to adhere to Court ordered deadlines and to complete discovery om good faith.
Additionally, pursuant to CPLR §3043(b), "a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities."
Defendants Transit also move, inter alia, to strike the two amended bills of particulars dated April 9, 2021 or in the alternative, to strike plaintiff's claim of special damages set forth in the initial bill of particulars ("BP") dated November 8, 2018. Defendants Transit contend that the two amended bills of particulars allege an April 2019 trigger point injection that was not included in the initial BP and served without leave of court. Plaintiff contends that while the injection was inadvertently left out of the initial BP, Defendant Transit already had knowledge of it as plaintiff testified to it and they were already in position of plaintiff's medical records. Plaintiff also argues that they served supplemental BPs rather than amended. However, upon a search of the record and review of plaintiff's deposition transcript, plaintiff did not testify to an April 2019 injection. Moreover, plaintiff has failed to annex any evidence of the April 2019 injection to the opposition. Accordingly, discovery is not complete.
Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to vacate the note of issue upon an affidavit showing the case is not ready for trial (See 22 NYCRR 202.21[e]). Upon such a showing, the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect (Id.). "At any time, the court on its own motion may 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 this section in some material respect" (Id.).
Although Defendants Transit moved to vacate the Note of Issue after 20 days of its filing, the within application to vacate the Note of Issue is denied as moot. The second Note of Issue filed on February 28, 2019 is void as plaintiff failed to pay the appropriate filing fee for a vacated Note of Issue. Nevertheless, the Court would have yet again vacated the Note of Issue had it been properly filed as plaintiff knowingly filed the Note of Issue when she was well aware of the outstanding items. Moreover, the Court notes that the Certificate of Readiness filed by plaintiff, is insufficient and does not contain the proper language. Plaintiff's counsel appears to have inexplicably edited and filed the Certificate of Readiness devoid of certain language without attaching an affirmation to explain the change. While the So-Ordered Stipulation dated September 14, 2020 included a Note of Issue date, it is well known that a Note of Issue must be accompanied by a Certificate of Readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial. (See McKiernan v Vaccaro, 168 A.D.3d 827 [2d Dept 2019]; 22 NYCRR 202.21[a], [b]). Thus, the February 28, 2019 Note of Issue, had it been filed in its proper form, would have nevertheless been a nullity. Plaintiff clearly states that discovery is incomplete.
Accordingly, it is hereby
ORDERED that plaintiff is directed to comply with the September 14, 2020 stipulation to the extent not already completed within 15 days of the service of the notice of entry of this Order. Failure to do so will result in plaintiff being precluding from offering any evidence of said injuries at trial and/or sanctions; and it further
ORDERED that plaintiff is directed to provide defendants with HIPAA compliant authorizations regarding the April 29, 2019 injection as stated in the supplemental bills of particulars within 30 days of service of this Order with Notice of Entry; and it is further
ORDERED that defendants are directed to serve plaintiff with a notice for a further deposition as it relates to the April 29, 2019 injection only within 60 days of service of this Order with Notice of Entry. Failure to do so will be deemed a waiver by defendants; and it is further
ORDERED that plaintiff is to appear for said further deposition within 30 days thereafter. Failure to do so will result in preclusion; and it is further
ORDERED that defendants are to serve plaintiff with a notice for a further independent medical examination with the appropriate specialties, as it relates to the April 29, 2019 injection only, within 15 days after plaintiff's further deposition. Failure to do so will be deemed a waiver by defendants; and it is further
ORDERED that plaintiff is to appear for said further independent medical examination within 30 days thereafter. Failure to do so will result in preclusion; and it is further
ORDERED that the parties are directed to make all diligent efforts to sign a stipulation once discovery is complete and present same to Chambers for an Order permitting the filing of a new Note of Issue. The parties are further reminded that failure of a party to stipulate to restore the matter to the calendar, without good cause, may result in the imposition of sanctions; and it is further
ORDERED that Defendant Transit shall serve the plaintiff and co-defendant with a copy of this Order, together with Notice of Entry, within 15 days of the filing of this order by the Queens County Clerk.
This is the decision and Order of the Court.