| McNeil v Hunter Roberts Constr. Group, L.L.C. |
| 2019 NY Slip Op 51385(U) [64 Misc 3d 1231(A)] |
| Decided on August 23, 2019 |
| Supreme Court, New York County |
| Reed, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Gregory McNeil,
MONIQUE MCNEIL, Plaintiff,
against Hunter Roberts Construction Group, L.L.C., BOP WEST 31ST STREET LLC., BROOKFIELD PROPERTIES W33RD CO. L.P., NAVILLUS TILE, INC., INDIVIDUALLY AND DOING BUSINESS AS NAVILLUS CONTRACTING, NAVILLUS CONTRACTING, BOP NE LLC, Defendant. |
The following e-filed documents, listed by NYSCEF document number (Motion 004) 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107 were read on this motion to VACATE/STRIKE - NOTE OF ISSUE/JURY
Upon the foregoing documents, it is ordered that defendants' motion for an order vacating the note of issue, pursuant to NYCRR § 202.21, is denied.
On September 7, 2017, the parties entered into a so-ordered stipulation that stated that discovery was complete (see NYSCEF Doc. No. 56). Plaintiffs filed a note of issue on September 9, 2017 (see NYSCEF Doc. No. 57).
Defendants now move to vacate the note of issue, arguing that plaintiff Gregory McNeil has failed to appear for an evaluation with defendants' expert life career planner. Plaintiffs oppose the motion, claiming that there is no basis to vacate the note of issue. Plaintiffs maintain that the standard for vacating a note of issue is not met by the arguments and evidence defendants puts forth.
"Where a party timely moves to vacate a note of issue (within twenty [20] days after service of a note of issue and certificate of readiness), it 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 AD3d 389, 390, 815 NYS 2d 30 [1st Dept 2006]; 22 NYCRR § 202.21[e]). A note of issue and certificate of readiness will be vacated where there is still extensive discovery to be completed or where the certificate of readiness erroneously states that all discovery is complete (Ortiz v Arias, 285 AD2d 390, 727 NYS 2d 879 [1st Dept 2001]). Defendants have not timely moved to vacate the note of issue.
Vacatur of the note of issue and certificate of readiness is also proper where a party defendant demonstrates "unusual or unanticipated" circumstances or "substantial prejudice" sufficient to warrant post-note of issue discovery (Schroeder v IESI NY Corp., 24 AD3d 180, 805 NYS 2d 79 [1st Dept 2005]; 22 NYCRR 202.21[d]). Here, defendants have not properly shown "unusual or unanticipated" circumstances or "substantial prejudice" to warrant vacating the note of issue. Defendants have failed to elaborate on why, almost two years after asserting that discovery was complete, they now need plaintiff Gregory McNeil to appear before a non-medical expert.
Accordingly, it is hereby
ORDERED that defendants' motion for an order vacating the note of issue pursuant to NYCRR § 202.21 is denied.