Contona v Godas

2019 NY Slip Op 35075(U)

January 31, 2019

Supreme Court, Nassau County

Docket Number: Index No. 608451/16

Judge: Denise L. Sher

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Op 30001(U), are republished from various New York

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This opinion is uncorrected and not selected for official

publication.
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SHORT FORM ORDER 

SUPREME COURT OF THE STATE OF NEW YORK 

PRESENT: HON. DENISE L. SHER 

Acting Supreme Court Justice 

ANTOINETTE CONTONA, 

Plaintiff, 

- against -

MARIA G. GODAS and JOANNE GODAS, 

Defendants. 

The followin& papers have been read on this motion: 

Order to Show Cause, Affirmation and Exhibits 

Affirmation in Opposition 

Reply Affirmation 

TRIAL/IAS PART 32 

NASSAU COUNTY 

Index No.: 608451/16 

Motion Seq. No.: 01 

Motion Date: 11/30/18 

Papers Numbered 

1 

2 

3 

Upon the foregoing papers, it is ordered that the motion is decided as follows: 

Defendants move, pursuant to 22 NYCRR 202.2l(e), for an order striking plaintiffs Note 

of Issue and Certificate of Readiness and removing this action from the trial calendar; and move 

for an order staying this action pending the completion of outstanding discovery. Plaintiff 

opposes the motion. 

The instant action was brought to recover for personal injuries allegedly sustained by 

plaintiff on March 20, 2016, when she tripped and fell on the sidewalk at defendants' premises, 

1064-B North Broadway, Massapequa, County ofNassau, State of New York. 

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Plaintiff commenced the action with the filing and service of a Summons and Verified 

Complaint on or about November 2, 2016. See Defendants' Affirmation in Support Exhibit A. 

Issue was joined on or about December 29, 2016. See Defendants' Affirmation in Support 

Exhibit B. 

In support of the motion, counsel for defendants submits, in pertinent part, that, "[ a ]t the 

November 14, 2017, compliance conference, counsel for the Plaintiff advised the attorney for 

Defendants and the Court that Plaintiff was still undergoing treatment as a result of the injuries 

she allegedly sustained in the accident that occurred on March 20, 2016. At that conference, 

Defendants reserved the right to conduct an Independent Medical Examination (hereinafter 

'IME') within forty-five (45) days of Plaintiff completing treatment.. .. On February 27, 2018, the 

parties appeared for another compliance conference before Justice Sher. At the conference, 

(sic) parties advised the Court that Plaintiff was still treating and that the IME has (sic) not been 

conducted. Justice Sher directed Defendants to proceed with the IME notwithstanding the fact 

that the Plaintiff was still undergoing treatment. On March 14, 2018, the IME of Plaintiff was 

conducted. On March 20, 2018, a certification conference was held, and a certification Order was 

issued directing Plaintiff to file her Note oflssue on or before August 20, 2018 .... On June 18, 

2018, Plaintiff filed a Note oflssue in this action .... On or about September 23, 2018 (nearly 

three (3) months after filing of the Note oflssue), counsel for Plaintiff contacted the undersigned 

to advise that Plaintiff was set to undergo a second surgery on her foot which was scheduled to 

take place on October 25, 2018. Moreover, on or about November 3, 2018, counsel for Plaintiff 

contacted the undersigned to advise that Plaintiff did not undergo a surgery on October 25, 2018, 

and it was re-scheduled to December. We expect that additional medical records will be required 

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to be processed, as well as a supplemental deposition and IME of the Plaintiff in order to 

determine what additional treatment she has received. It is expected that the parties will not be 

able to proceed with the supplemental deposition and IME of the Plaintiff until such time as she 

firmly concludes treatment.. .. As Plaintiff still continues to undergo treatment in connection with 

the injuries allegedly sustained as a result ofher alleged March 20, 2016 accident, there is 

outstanding discovery which prevents this action from proceeding to trial as Defendants are 

entitled to an opportunity to prepare an appropriate defense of this matter, require an opportunity 

to conduct a supplemental deposition, and require a supplemental IME of the Plaintiff." See 

Defendants' Affirmation in Support Exhibits A-F. 

Counsel for defendants adds that, "[i]n the case at hand, Plaintiff filed a Note oflssue on 

or about June 18, 2018 attesting that the case was ready for trial.. .. However, at the time of the 

filing of the Note of Issue Plaintiff was still continuing treatment and as a result, Plaintiff was 

scheduled to undergo an additional surgery on October 25, 2018. Knowing that Plaintiff was still 

treating and that additional discovery would be required, Plaintiff still proceeded to file the Note 

oflssue and in (sic) the Certificate of Readiness indicating that the case is ready for trial. Since 

additional items of discovery remain outstanding, the Note oflssue should be vacated in order for 

Defendants to complete discovery, as proceeding to trial will cause prejudice to the Defendants 

in preparing an adequate defense in this matter." See Defendants' Affirmation in Support Exhibit 

F. 

In opposition to the motion, counsel for plaintiff submits, in pertinent part, that, 

"[ d]efendants' 'Affirmation in Support' accurately sets forth that plaintiff is still undergoing 

treatment to the left foot, for injuries claimed to be related to incident which is the subject of this 

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litigation. Defendants further accurately set forth that I contacted counsel for defendants on or 

about September of2018 with respect to discussing plaintiffs plans for surgery, at that time 

anticipated to be performed on October 25, 2018. That anticipated date for surgery was canceled 

due to, upon information and belief, discovery of deep vein thrombosis within plaintiffs leg. 

Thereafter, I contacted counsel for defendants to inform them that the surgery was being 

rescheduled and was anticipated for some time in December. Upon information and belief, no 

dates were available for the procedure in December and the procedure has been tentatively 

scheduled for February 5, 2019. That February date has not yet been confirmed to plaintiff by all 

of the medical providers necessary to move forward with the procedure. As a preliminary matter, 

in the event the plaintiff undergoes the anticipated surgery, plaintiff does not have any objection 

to consenting to a further deposition, limited to new treatment and matters not previously covered 

at her previous examination. Furthermore, and in the event plaintiff undergoes the anticipated 

surgery, plaintiff has no objection to consenting to a further defense medical examination. Should 

plaintiff undergo the anticipated surgery, plaintiff would respectfully leave it to the Court to 

decide whether the additional discovery could not be performed expeditiously without the need 

for vacating plaintiffs Note oflssue. However, the defendant's motion is respectfully premature. 

Plaintiff has not in fact undergone the aforementioned surgical procedure as of the date of this 

Order to Show Cause, and thus there is no compelling reason at this time to vacate plaintiffs 

Note oflssue and Certificate of Readiness. The defendants' entitlement to additional items of 

outstanding discovery, as outlined within the defendants' 'Affirmation in Support', are 

anticipated and hypothetical at the present time, warranting denial of their motion." 

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A Note oflssue may be vacated pursuant to New York Court Rules§ 202.21(e) if the 

following circumstances are present: 

Within 20 days after service of a note of issue and certificate 

move 

of readiness, any party to the action or special proceeding may 

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 any material 

respect. ... After such period, ... no such motion shall be allowed 

motion 

except for good cause shown. At any time, the court on its own 

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. 

That is, a timely motion to vacate the Note oflssue pursuant to 22 NYCRR § 202.21(e) 

need only demonstrate in what respects the case is not ready for trial. See Mosley v. Flavius, 13 

A.D.3d 346, 785 N.Y.S.2d 742 (2d Dept. 2004); Audiovox Corp. v. Benyamini 265 A.D.2d 135, 

707 N.Y.S.2d 137 (2d Dept. 2000). However, if the party seeking discovery moves to compel 

such discovery after the twenty (20) day period provided by 22 NYCRR 202.21(e) has expired, 

the more stringent standard under 22 NYCRR 202.21 ( d) requiring the movant to demonstrate 

unusual or unanticipated circumstances and substantial prejudice must be met. 

In the instant matter, defendants' motion to vacate the Note oflssue was not made within 

twenty (20) days after service of the Note oflssue and Certificate of Readiness. However, the 

Court finds that defendants have demonstrated unanticipated circumstances and substantial 

prejudice in support of their request to vacate the Note of Issue. The Court notes that the instant 

matter is currently calendared before the Central Jury Part on February 19, 2019. Defendants 

would be prejudiced if ordered to proceed to jury selection on said date without having the 

discovery detailed above if plaintiff does indeed have the additional surgery. 

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"' 

Accordi11:gly, the branch of defendants' motion, pursuant to 22 NYCRR 202.21(e), for an 

order vacating plaintiff's Note of Issue and Certificate of Readiness and striking this action from 

the trial calendar, is hereby GRANTED. And it is further 

ORDERED that plaintiff shall file a Note oflssue in the instant matter by April 1, 2019. 

A Copy of this Order must accompany the Note oflssue. If, by April 1, 2019, there still remains 

outstanding discovery pertaining to an additional surgery for plaintiff, counsel for the parties are 

advised to contact Chambers with respect to same. 

The branch of defendants' motion for an order staying this action pending the completion 

of outstanding discovery, is hereby DENIED. 

This constitutes the Decision and Order of this Court. 

Dated: Mineola, New York 

January 31, 2019 

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ENTERED 

FEB l \ 20\S 

NASSAU c()UN'fY 

COUNTY CLERK'S OfFICE 

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