### 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 Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

1 of 6 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme CourtJustice ANTOINETTE CONTONA, Plaintiff,

- against

- MARIA G. GODAS and JOANNE GODAS, Defendants. Thefollowin& papers have been read on this motion: Orderto Show Cause, Affirmation and Exhibits Affirmation in Opposition ReplyAffirmation TRIAL/IAS PART 32 NASSAU COUNTY IndexNo.: 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 ofIssue and Certificate ofReadiness and removing this action from the trial calendar; and move for an order staying this actionpending the completion ofoutstanding discovery. Plaintiff opposes the motion. The instant action was broughtto recover for personal injuries allegedly sustained by plaintiffon March 20, 2016, when she tripped and fell on the sidewalk at defendants' premises, 1064-B North Broadway, Massapequa, County ofNassau, State ofNew York. 

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### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

2 of 6 Plaintiffcommenced the action withthe filing and service ofa Summons and Verified Complaint on or aboutNovember 2, 2016. 

### See Defendants' Affirmation in Support Exhibit A. Issue wasjoined on or about December 29, 2016. 

### See Defendants' Affirmation in Support Exhibit B. 

### In support ofthe motion, counsel for defendants submits, inpertinentpart, that, "[ a]tthe November 14, 2017, compliance conference, counsel for the Plaintiffadvised the attorney for Defendants and the Court that Plaintiffwas still undergoing treatment as a result ofthe 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 ofPlaintiffcompleting treatment.... On February 27, 2018, the parties appeared for another compliance conference before Justice Sher. Atthe conference, (sic) parties advised the Court that Plaintiffwas 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 Plaintiffwas still undergoing treatment. OnMarch 14, 2018, the IME ofPlaintiffwas conducted. On March 20, 2018, a certification conference was held, and a certification Order was issued directing Plaintiffto file herNote oflssue on orbefore August 20, 2018.... On June 18, 2018, Plaintifffiled a Note oflssue in this action
.... On or about September 23, 2018 (nearly three (3) months after filing ofthe Note oflssue), counsel for Plaintiffcontacted the undersigned to advise that Plaintiffwas set to undergo a second surgery onherfoot 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 Plaintiffdid not undergo a surgery on October 25, 2018, and it was re-scheduled to December. We expect that additional medical records will be required -2-


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### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

3 of 6 to be processed, as well as a supplemental deposition and IME ofthe Plaintiffin 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 ofthe Plaintiffuntil such time as she firmly concludes treatment..
.. As Plaintiffstill continues to undergo treatment in connection with the injuries allegedly sustained as a result ofher alleged March 20, 2016 accident, there is outstanding discovery whichprevents this action from proceeding to trial as Defendants are entitled to an opportunity to prepare an appropriate defense ofthis matter, require an opportunity to conduct a supplemental deposition, and require a supplemental IME ofthe Plaintiff." 

### See Defendants' Affirmation in Support Exhibits A-F. Counsel for defendants adds that, "[i]n the case at hand, Plaintifffiled a Note oflssue on or about June 18, 2018 attesting that the case was ready for trial..
.. However, at the time ofthe filing ofthe Note ofIssue Plaintiffwas still continuing treatment and as a result, Plaintiffwas scheduled to undergo an additional surgery on October 25, 2018. Knowing that Plaintiffwas still treating and that additional discovery would be required, Plaintiffstill proceeded to file the Note oflssue and in (sic) the Certificate ofReadiness indicating that the case is ready for trial. Since additional items ofdiscovery 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 inthis matter." 

### See Defendants' Affirmation in Support Exhibit 

### F. In opposition to the motion, counsel for plaintiffsubmits, in pertinent part, that, "[

d]efendants' 'Affirmation in Support' accurately sets forth that plaintiffis still undergoing treatment to the left foot, for injuries claimed to be related to incident which is the subject ofthis -3-


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### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

4 of 6 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 ofdeep 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 plaintiffby all ofthe medical providers necessary to move forward with the procedure. As a preliminary matter, in the event the plaintiffundergoes the anticipated surgery, plaintiffdoes 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 plaintiffundergoes the anticipated surgery, plaintiffhas no objection to consenting to a further defense medical examination. Should plaintiffundergo the anticipated surgery, plaintiffwould 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. Plaintiffhas not in fact undergone the aforementioned surgical procedure as ofthe date ofthis Order to Show Cause, and thus there is no compelling reason at this time to vacate plaintiffs Note oflssue and Certificate ofReadiness. 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 oftheir motion."

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### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

5 of 6 A Note oflssue may be vacated pursuant to New York Court Rules§ 202.21(e) ifthe following circumstances are present: Within 20 days after service ofa note ofissue and certificate ofreadiness, any party to the action or special proceeding may move to vacate the note ofissue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note ofissue ifit appears that a material fact in the certificate ofreadiness is incorrect, or that the certificate ofreadiness fails to complywith the requirements ofthis section in any material respect....After such period,
...no such motion shall be allowed except for good cause shown. At any time, the court on its own motion may vacate a note ofissue ifit appears that a material fact inthe certificate ofreadiness is incorrect, orthat the certificate of readiness fails to complywiththe requirements ofthis section in some material respect. That is, a timelymotionto vacate the Note oflssuepursuant 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, ifthe party seeking discovery moves to compel such discovery after the twenty (20) day period provided by 22 NYCRR202.21(e) has expired, the more stringent standard under 22 NYCRR 202.21(d) requiring the movant to demonstrate unusual or unanticipated circumstances andsubstantial prejudice must be met. In the instant matter, defendants' motion to vacate the Note oflssue was not made within twenty (20) days after service ofthe Note oflssue and Certificate ofReadiness. However, the Court finds that defendants have demonstrated unanticipated circumstances andsubstantial prejudice in support oftheirrequest to vacate the Note ofIssue. The Court notes that the instant matter is currently calendared before the Central Jury Part onFebruary 19, 2019. Defendants would be prejudiced ifordered to proceed tojury selection on said date without having the discovery detailed above ifplaintiffdoes indeed have the additional surgery.
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### FILED: NASSAU COUNTY CLERK 02/11/2019 INDEX NO. 608451/2016 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2019

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### "' Accordi11:gly, the branch ofdefendants' motion, pursuantto 22 NYCRR202.21(e), for an order vacating plaintiff'sNote ofIssue and Certificate ofReadiness and striking this action from the trial calendar, is hereby GRANTED. And it is further ORDERED thatplaintiffshall file a Note oflssue inthe instant matter by April 1, 2019. A Copy ofthis Order must accompanythe Note oflssue. If,by April 1, 2019, there stillremains outstanding discovery pertaining to an additional surgery for plaintiff, counsel for the parties are advised to contact Chambers with respectto same. The branch ofdefendants' motion for an order staying this actionpending the completion ofoutstanding discovery, is hereby DENIED. This constitutes the Decision and Order ofthis 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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