Defendants thus have shown that plaintiff's certificate of readiness for trial accompanying his note of issue falsely certified that disclosure was complete, when plaintiff had not responded as necessary to defendants' requests for documents as set forth above, and plaintiff therefore failed to comply with 22 N.Y.C.R.R. § 202.21(b) in a fundamental respect. 22 N.Y.C.R.R. § 202.21(e); Varga v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390-91 (1st Dep't 2006); Cromer v. Yellen, 268 A.D.2d 381, 381 (1st Dep't 2000).
A second supplemental bill of particulars, if it is served without leave of court and asserts new injuries, is considered an amended bill of particulars. ( See CPLR § 3042(b); Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 391, 815 N.Y.S.2d 30, 33 [1st Dept. 2006]). Under CPLR § 3042(b), a party may amend the bill of particulars once as of course prior to the filing of a note of issue.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about June 9, 2021, which, to the extent appealed from as limited by the briefs, denied defendants' motion to vacate the note of issue, unanimously reversed, on the law and the facts, without costs, the motion granted, and the note of issue vacated. Where a party moves to vacate a note of issue, the only showing necessary on the motion is that "'a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of... section [202.21] in some material respect'" (Vargas v Villa Josefa Realty Corp., 28 A.D.3d 389, 390 [1st Dept 2006], quoting 22 NYCRR 202.21[e]). As defendants showed on their motion, the certificate of readiness in this action failed to state that discovery proceedings known to be necessary were completed, that there were no outstanding discovery requests, that there had been a reasonable opportunity to complete the proceedings, and that the case was ready for trial (22 NYCRR 202.21[b]).
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about June 9, 2021, which, to the extent appealed from as limited by the briefs, denied defendants' motion to vacate the note of issue, unanimously reversed, on the law and the facts, without costs, the motion granted, and the note of issue vacated. Where a party moves to vacate a note of issue, the only showing necessary on the motion is that " ‘a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of ... section [202.21] in some material respect’ " ( Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390, 815 N.Y.S.2d 30 [1st Dept. 2006], quoting 22 NYCRR 202.21 [e]). As defendants showed on their motion, the certificate of readiness in this action failed to state that discovery proceedings known to be necessary were completed, that there were no outstanding discovery requests, that there had been a reasonable opportunity to complete the proceedings, and that the case was ready for trial ( 22 NYCRR 202.21 [b]).
The record evidence thus raises questions of fact regarding whether ABM launched the force or instrument of harm while performing its contractual obligations for the owners, requiring denial of ABM's summary judgment motion (seeRamsey v. Temco Serv. Indus., Inc., 179 A.D.3d 726, 727–728, 117 N.Y.S.3d 85 [2020] ; George v. Marshalls of MA, Inc., 61 A.D.3d 925, 928–929, 878 N.Y.S.2d 143 [2009] ; see alsoArvanete v. Green St. Realty, 241 A.D.2d at 910, 660 N.Y.S.2d 219 ; compareDapp v. Larson, 240 A.D.2d 918, 919, 659 N.Y.S.2d 130 [1997] ). Finally, plaintiffs' motion for leave to amend their bill of particulars was unnecessary; as the note of issue had not yet been filed, they were entitled by statute to serve an amended bill of particulars without leave of court (see CPLR 3042[b] ; Malek v. Village of Depew, 156 A.D.3d 1412, 1413, 65 N.Y.S.3d 843 [2017] ; Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 391, 815 N.Y.S.2d 30 [2006] ; Leach v. North Shore Univ. Hosp. at Forest Hills, 13 A.D.3d 415, 416, 787 N.Y.S.2d 65 [2004] ). Hence, plaintiffs were properly allowed to serve that amended pleading (seeReitman v. St. Francis Hosp., 2 A.D.3d 429, 430, 767 N.Y.S.2d 843 [2003] ).
However, the November 2016 order, which granted defendant's motion to vacate the note of issue and denied plaintiffs' motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1] ; Siegmund Strauss, Inc. v. East 149th Realty Corp., 20 N.Y.3d 37, 41–43, 956 N.Y.S.2d 435, 980 N.E.2d 483 [2012] ). The court correctly vacated the note of issue on the ground that there was significant fact and expert discovery outstanding at the time it was filed (see Uniform Rules for Trial Cts [ 22 NYCRR] § 202.21 [a]-[b]; Tirado v. Miller, 75 A.D.3d 153, 156, 901 N.Y.S.2d 358 [2d Dept. 2010] ; Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390–391, 815 N.Y.S.2d 30 [1st Dept. 2006] ). Plaintiffs' claim that defendant's deposition notices were fabricated is unpersuasive.
Moreover, plaintiff's certificate of readiness was incorrect in that it indicated that “[a]ll relevant information, party statements, medical records, reports (in plaintiff's attorney's possession) and/or authorizations [had] been exchanged.” However, plaintiff did not provide his supplemental bill of particulars or authorization for Social Security Unemployment records until approximately six weeks after filing the note of issue and certificate of readiness ( see Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 391, 815 N.Y.S.2d 30 [1st Dept. 2006] ).
A party may amend its bill of particulars once as of course before the filing of the note of issue (CPLR 3042[b] ). In Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 391, 815 N.Y.S.2d 30 [1st Dept. 2006], this Court held that an amended bill of particulars was properly served because the note of issue had been vacated. Here, when plaintiff served his amended bill of particulars, the court had vacated the original note of issue.
In any event, we find unpersuasive plaintiffs' argument that its motion should be treated as if the note of issue had not yet been filed. When Supreme Court struck the note of issue some 10 months after it was filed and removed the case from the trial calendar, it did so specifically to accommodate plaintiffs' eleventh-hour motion to amend their bill of particulars and to thereafter permit summary judgment motions within mandated motion deadlines, distinguishing this case from those where the note of issue was struck in full anticipation of further discovery ( cf. Vargas v Villa Josef a Realty Corp., 28 AD3d 389, 390; Leach v North Shore Univ. Hosp. at Forest Hills, 13 AD3d 415, 416; but cf. Reitman v St. Francis Hosp., 2 AD3d 429, 430). Under these circumstances, we hold that plaintiffs have not demonstrated their entitlement to amend their bill of particulars as of right ( see CPLR 3042 [b]).
Pursuant to 22 NYCRR § 202.21(e), a party that timely moves to vacate a note of issue need show only that a "material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements" of section 202.21 in some material respect (Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390 [1st Dept 2006]; quoting 22 NYCRR § 202.21[e]). When a certification erroneously states, as here, that "discovery has been completed," the "note of issue should be vacated" (Ruiz v. Park Gramercy Owners Corp., 182 A.D.3d 471, 471 [1st Dept 2020]); see also NYSCEF Doc. No. 73, Note of Issue, dated April 30, 2024] [certifying discovery was complete when the motion to compel was pending and parties failed to complete depositions as directed in the court's December 15, 2023 status conference order]).