The following e-filed documents, listed by NYSCEF document number (Motion 001) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 37, 38 were read on this motion to VACATE/STRIKE - NOTE OF ISSUE/JURY

In this action to recover damages from an alleged slip and fall accident, defendants, 74 State Hotel and Stepstone Hospitality, Inc., move for an order: (a) precluding plaintiff, Joseph R. Mirto, from offering any evidence at the time of trial regarding loss of earnings, or, alternatively; (b) vacating plaintiff's note of issue and vacating the certificate of readiness; (c) [*2]striking/removing this case from the trial calendar; (d) compelling plaintiff to provide discovery, including authorizations for tax returns, related to plaintiff's loss of earnings claim; (e) compelling plaintiff to appear for a further examination before trial related plaintiff's loss of earnings claim; and (f) granting permission to conduct a nonparty examination before trial of a representative from the company who allegedly employed plaintiff as a lobbyist.

Plaintiff opposes the motion with respect to: (a) precluding plaintiff from offering evidence of lost earnings at trial; and (b) vacating the note of issue and certificate of readiness and removing this case from the trial calendar. Plaintiff agrees, however, to provide the additional discovery including, authorizations for the applicable tax returns and a further deposition related to the lost earnings claim. Plaintiff also consents to permit defendants to conduct a nonparty witness deposition of an employee from the company that hired plaintiff to work as a lobbyist.

For the reasons set forth below, the motion is granted in part and denied in part.

Plaintiff alleges that, on January 8, 2014 at 2:30 a.m., he slipped and fell sustaining a number of personal injuries on the sidewalk in front of a hotel located 74 State Street, Albany, New York.

On August 1, 2016, plaintiff commenced the instant action by filing a summons and verified complaint. Defendants served an answer on or about September 27, 2016. On April 19, 2017, plaintiff served a verified bill of particulars (defendants exhibit B). On April 20, 2017, the parties appeared for a preliminary conference wherein plaintiff was ordered to produce authorizations for plaintiff's employment records for the period of two years prior to the accident within 60 days and a supplemental bill of particulars as to lost earnings within 45 days (defendants exhibit C).

On May 26, 2017, August 21, 2017 and October 24, 2017, defense counsel sent plaintiff's counsel letters requesting a supplemental bill of particulars as to lost wages and accompanying authorizations (defendants exhibits D-F). On October 27, 2017, plaintiff sent a letter to defendants advising that plaintiff was not asserting a claim for lost earnings, and, therefore, plaintiff's tax records and employment records would not be provided (defendants exhibit H).

On July 25, 2018, plaintiff, a chiropractor and a lobbyist, testified at his deposition that he was unable to participate in the January through June 2014 lobbying session due to the accident and was unable to work at the chiropractic office for about six months full time, but that he was eventually able to resume his employment activities and was therefore not making a lost earnings claim (Mirto dep at 11-15, defendants exhibit I).

After extensive discovery, on August 13, 2019, plaintiff filed the note of issue and certificate of readiness and asserted that all discovery has been completed (defendants exhibit I). However, pursuant to a so-ordered stipulation dated July 11, 2019, the parties agreed, and the court so ordered, that nonparty depositions may be held post note of issue.

On or about September 16, 2019, plaintiff served a supplemental bill of particulars, and, for the first time, after numerous assertions to the contrary, plaintiff alleges lost earnings for his work as a lobbyist for Empire Consultants. Plaintiff alleged that, since the subject accident, his lobbying agreement/authorization/contract (for which plaintiff was paid $10,000 per month for one year) between Empire Consultants and Rose Group LLL was terminated/not renewed for the 2014 lobbying year, resulting in a loss of income of $120,000 to plaintiff.

"Where a party timely moves to vacate a note of issue, the movant need only show 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 [1st Dept 2006] [citation omitted]). A motion to vacate a note of issue that is made more than 20 days after the note of issue has been served, however, is untimely (Arnold v New York City Hous. Auth., 282 AD2d 378, 378 [1st Dept 2001]). Here, defendants filed the motion to vacate the note of issue eight months after the note of issue was filed, and defendants have failed to make a showing of special circumstances required in order to overcome the 20-day rule (id.). Therefore, the note of issue will not be vacated.

Nonetheless, while defendants' motion is untimely, "'[t]rial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced'" (Cabrera v Abaev, 150 AD3d 588, 588 [1st Dept 2017], quoting Cuprill v Citywide Towing & Auto Repair Servs., 149 AD3d 442, 443 [1st Dept 2017]). The court, in its discretion, may do so "where the moving party demonstrates that 'unusual or unanticipated circumstances' developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice" (Karakostas v Avis Rent A Car Sys., 306 AD2d 381, 382 [2d Dept 2003]). An unusual and unanticipated circumstance is some occurrence after the filing of a note of issue that is not in the control of the party seeking further discovery and which causes actual rather than potential prejudice (Audiovox Corp. v Benyamini, 265 AD2d 135, 138-139 [2d Dept 2000]).

Plaintiff neglected to raise his lost earnings claim after the matter had been litigated for nearly three years, six years after the alleged accident and after two court orders and four requests from defense counsel, and after he had affirmatively asserted that there was no lost earnings claim. Yet, one month after the note of issue was filed, plaintiff supplemented the bill of particulars to include a lost earnings claim. This situation falls within the ambit of unusual and unanticipated circumstances, and the court finds that to prevent the additional discovery regarding plaintiff's lost earnings claim would be to permit "substantial prejudice" to defendants (see e.g., Singh v 244 W. 39th St. Realty, Inc., 65 AD3d 1325, 1325-1326 [2d Dept 2009] [the plaintiff's service, subsequent to the filing of the note of issue, of a supplemental bill of particulars and an expert report alleging that the cost of medical care would be more than three times more than what had previously been alleged demonstrated unusual and unanticipated circumstances justifying additional discovery]; Tash v Federated Dept. Stores, Inc., 22 AD3d 386, 387 [1st Dept 2005] ["(p)ost-note of issue disclosure was properly directed in order to avoid the prejudice engendered by plaintiff's claims for psychological injuries and economic loss first alleged after the note of issue was filed"]).

Accordingly, that branch of defendant's motion with respect to outstanding discovery relating to plaintiff's lost earnings claim is granted, and plaintiff shall provide: all authorizations for the personal and corporate tax returns for Empire Consultants, as well as any other company related to plaintiff's lost earnings claim for two years prior to and two years after the accident; and any employment records related to plaintiff's work as a lobbyist and discharge therefrom with the firm or firms that retained him for two years prior to the date of the accident to date. Said authorizations and documents shall be provided within 14 days from entry of this decision and order. Failure to do so may result in preclusion of the lost earnings claim. In addition, defendants shall serve notice to plaintiff to appear and plaintiff shall appear for a further deposition limited to plaintiff's lost earnings claim, to be completed within 30 days upon receipt [*3]of documents relating to the tax returns for Empire Consultants and any other company connected with plaintiff's lost earnings claim. Defendants may also conduct a nonparty witness deposition of a representative from the company(ies) that employed plaintiff as a lobbyist; the deposition shall be completed within 60 days from the entry of this decision and order.

Accordingly, it is

ORDERED that the motion by defendants, 74 State Hotel and Stepstone Hospitality, Inc., to vacate the note of issue is denied; and it is further

ORDERED that the branch of the motion compelling plaintiff to provide discovery, including authorizations for tax returns, related to plaintiff's lost earnings claim and compelling plaintiff to appear for a further deposition related to his loss of earnings claims, and permission for defendants to conduct a nonparty examination before trial of a representative from the company(ies) who employed plaintiff as a lobbyist is granted; and it is further

This constitutes the decision and order of the court.