Statement Pursuant to CPLR § 2219 [a]

Pursuant to CPLR § 2219 [a], the following is a statement of the papers considered by the Court. The Court considered the defendants' notice of motion dated June 4, 2025, together with the affirmation in support submitted by Robert R. Chance, Esq., the good faith affirmation, Rule 130 certification, word count certification, and all accompanying exhibits. The Court also reviewed the plaintiff's affirmation in opposition submitted by Merav Dekel, Esq., dated June 5, 2025, including [*2]attached discovery responses, correspondence, and a copy of the April 15, 2025 Certification Order. Additionally, the Court considered the reply affirmation submitted by Charles M. Popp, Esq., dated June 16, 2025, as well as the accompanying certifications. All prior pleadings and proceedings submitted in support of and in opposition to the motion were also considered in rendering this decision and order.

This matter arises from a personal injury action stemming from an alleged trip-and-fall incident that occurred on June 4, 2023. The timeline of the litigation is as follows:

• September 21, 2023: Plaintiff commenced this action via electronic filing of a Summons and Verified Complaint.

• October 30, 2023: Defendants Duane Reade Inc. (i/s/h/a Walgreen Co.) and Oakwood Center, LLC filed their Verified Answer.

• December 21, 2023: Defendants served initial discovery demands, including a Demand for a Bill of Particulars, a Medicare information demand, and requests concerning prior and subsequent injuries.

• September 10, 2024: A Compliance Conference Order was entered, directing Plaintiff to appear for deposition on November 13, 2024, and for the parties to serve post-EBT demands within 30 days of the deposition.

• November 13, 2024: Plaintiff's deposition was conducted virtually as ordered.

• November 19 & 22, 2024: Defendants served post-EBT demands, seeking medical records from prior incidents, a 911 call report, and hospital records from Staten Island Hospital.

• December 20, 2024: Plaintiff served his own post-EBT demand, to which Defendants have not responded.

• January 17, 2025: Plaintiff moved to supplement the Complaint to add AVR Realty Company, LLC as a party.

• January 21, 2025:

• A second Compliance Conference Order was entered, reiterating the directive for Plaintiff to respond to Defendants' post-EBT demands dated November 19 and 22, 2024.

• Defendants served a third post-EBT demand seeking further medical records.

• March 19, 2025: A third Compliance Conference Order was issued, again directing Plaintiff to respond to all outstanding post-EBT demands within 30 days.

• April 15, 2025: At the fourth conference, the Court issued a Certification Order stating:

"Preliminary proceedings in the within captioned action having been completed, the action is ready for trial and Plaintiff must serve and file a Note of Issue and Certificate of Readiness within thirty (30) days."

• May 15, 2025: Plaintiff filed the Note of Issue in compliance with the Certification Order.

• June 4, 2025: Defendants filed this motion to vacate the Note of Issue and compel discovery.

Notably, Plaintiff provided responses to the November 19 and 22, 2024 demands on November 22, 2024, and to the January 21, 2025 demand on January 22, 2025. These responses were attached to Plaintiff's opposition and served by mail contemporaneously.

A. Standard for Vacatur of Note of Issue — 22 N.Y.C.R.R. § 202.21(e)

Under 22 NYCRR. § 202.21 [e], a motion to vacate a Note of Issue must demonstrate that the case is not trial-ready due to incomplete discovery. The movant bears the burden of showing that material discovery remains outstanding, and that they have been diligent in pursuing it. (see Levy v Wexler, 16 AD2d 688 [2d Dept 1962]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]). Here, Defendants fail to meet either prong.

B. Discovery Was Timely Responded To

Defendants assert that Plaintiff failed to respond to post-EBT demands served on November 19, 22, 2024, and January 21, 2025. However, Plaintiff has submitted documentary evidence of responses served on November 22, 2024 and January 22, 2025, within the time frames directed by the Court.

Although Defendants claim they never received these responses, their failure to request enforcement or raise this purported non-receipt in open court on January 21, March 19, or April 15, 2025 is dispositive. Three court conferences transpired after the alleged non-receipt, yet Defendants remained silent. Moreover, the responses were not filed via NYSCEF, but nothing in the Uniform Rules requires e-filing of discovery exchanges. Defendants' own delay and silence preclude equitable relief.

C. The Note of Issue Was Filed Pursuant to Court Order

The Certification Order of April 15, 2025, signed by the Court in Defendants' presence, explicitly stated that all preliminary proceedings were complete and directed Plaintiff to file the Note of Issue within 30 days. Defendants did not object at the time, nor did they seek clarification or protective relief. It is disingenuous to now challenge the very certification they failed to contest in real time.

The law is well-settled: "A party who fails to timely move to vacate a note of issue after its filing—particularly when that note was filed pursuant to court order—faces a heavy burden to justify reversal." (see La Porte v Bertolino, 25 Misc 2d 783 [Sup Ct Kings County 1960]).

D. Delay Is Attributable to Defendants

The record reflects that Plaintiff timely served responses and that Defendants never filed a motion to compel prior to the Note of Issue. Conversely, Defendants have failed to respond to Plaintiff's December 20, 2024 post-EBT demand, and make no showing of substantial compliance.

Defendants had:

• Over five months from Plaintiff's deposition (Nov. 13, 2024) until the Note of Issue (May 15, 2025),

• Three formal court orders enforcing discovery deadlines,

• And four conferences in which to raise objections or seek relief

Defendants did not act with diligence. This is precisely the type of inactivity the courts have denounced in Sortino v. Fisher, (20 AD2d 25 [1st Dept 1963]), where the Court warned against "repeated adjournments and unwarranted delays" designed to clog the docket.

E. The Policy of Calendar Integrity

This Court reiterates its strong adherence to the policy of calendar integrity. Cases must move. Discovery cannot be endlessly prolonged. Defendants may not stall litigation by sitting idly through multiple compliance orders, only to seek retroactive reversal when the Note of Issue is filed in strict adherence to a court directive.

Litigation is not a game of attrition. Judicial economy and calendar efficiency demand finality and diligence.

The Court finds:

• Plaintiff has complied with all applicable discovery obligations;

• The Note of Issue was timely and properly filed under court order;

• Defendants' failure to act over many months and multiple court conferences precludes equitable relief.

ORDERED, that Defendants' motion to vacate the Note of Issue and Certificate of Readiness is DENIED in its entirety; and it is further

ORDERED, that Defendants' application to compel additional discovery is DENIED; and it is further

ORDERED, that Defendants' request to extend time for summary judgment is DENIED.

This constitutes the Decision and Order of the Court