Preview
FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
------------------------------------------------------------------X
JOHN W. CRAWFORD III,
Plaintiff,
AFFIRMATION IN
-against- SUPPORT
ROBIN E. GARDNER, Index No. E174178/2021
Defendant.
------------------------------------------------------------------X
CHI WAI CHUCK CHANG, an attorney duly admitted to practice law before the Courts of the State of New
York, affirms the following to be true, upon information and belief, under penalties of perjury:
1. I am an attorney associated with the law firm of MARTYN, SMITH, MURRAY & YONG,
ESQS., attorneys for the defendant, ROBIN E. GARDNER. I am fully familiar with the facts and circumstances set
forth herein based upon my review of a file maintained in this office.
2. The affirmation is submitted in support of defendant’s motion for an Order
pursuant to 22 NYCRR § 202.21(e), vacating the Note of Issue and Certificate of Readiness filed and served by
the plaintiff and striking this action from the Trial Calendar on the grounds that the Certificate of Readiness is
incorrect and that all discovery now known to be necessary has not been completed; or, an Order pursuant to
CPLR §§ 3124 and 3126, compelling plaintiff to appear for her Independent Medical Examination. Moreover, it
is respectfully submitted that defendant’s time to move for summary judgment be extended 120 days from the
completion of discovery.
3. This is an action to recover damages resulting from an alleged motor vehicle accident that
occurred on August 2, 2019, at a point near its intersection with Lockport Street, both public highways located
within the City of Niagara Falls, State of New York. As a result of the accident, the plaintiff has alleged
personal injuries.
4. Plaintiff commenced this action with the e-filing and service of a Summons and Verified
Complaint dated February 9, 2021. The moving defendant joined issue through the service of a Verified Answer
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FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
dated March 5, 2021. See Summons, Verified Complaint, and Verified Answer annexed hereto collectively as
Exhibit A.
5. Plaintiff filed his Note of Issue and Certificate of Readiness for Trial on February 2, 2022. See
Note of Issue and Certificate of Readiness for Trial, annexed hereto collectively, as Exhibit B. Accordingly,
this motion is timely as it is being made within 20 days of the receipt of the plaintiff’s Note of Issue and
Certificate of Readiness.
6. This action is not ready for trial as plaintiff has not appeared for his Independent Medical
Examination.
7. The Plaintiff’s EBT was held on October 19, 2021.
8. Plaintiff incorrectly states on the Note of Issue and Certificate of Readiness that this case is ready
for trial. This representation made by plaintiff’s counsel is inconsistent with the current status of this action as
plaintiff has failed to appear for an independent medical examination.
9. It is respectfully submitted that the defendants, herein will be severely prejudiced should
plaintiff’s Note of Issue not be stricken from the calendar, as the outstanding discovery is material, vital and
necessary for a proper defense of the within matter. The plaintiff’s Note of Issue and Certificate of Readiness
should be vacated and the matter should be stricken from the trial calendar, where a plaintiff’s Certificate of
Readiness contains incorrect representations are material fact by asserting that discovery proceedings necessary
have been completed, yet, outstanding discovery remains present. Garofalo v. Mercy Hospital, 706 N.Y.S.2d
477 (2nd Dept. 2000).
10. Alternatively, it is respectfully submitted that an Order should be issued compelling plaintiff to
appear for a physical examination by a date certain, or else be precluded from offering any evidence as to
damages at the time of trial.
WHEREFORE, it is respectfully requested that the Court issue an Order striking the above-entitled
action from the calendar, or preventing it from being placed upon the calendar, vacating plaintiff's Note of Issue
and Certificate of Readiness for trial, or in the alternative, allowing this case to remain on the calendar,
directing plaintiff to provide all outstanding discovery by a date certain or else be precluded from offering any
evidence as to damages at the time of trial,and allowing an additional 120 days for dispositive motions once
discovery is completed, and for such other and further relief as to the court may deem just and proper.
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FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
Dated: Hauppauge, New York
February 17, 2022
____________________________________
CHI WAI CHUCK CHANG
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FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
Certificate of Compliance
Pursuant to 22 NYCRR 2.2.8-b(a)
It is hereby certified that the information below sets forth the specifications by which this computer-generated
brief complies with rule 22 NYCRR 202.8-b(a) of the Court
The word processor states that this affirmation contains _670_____ words.
The typeface (font) is Times New Roman.
The point size is 12.
The line spacing is double.
____________________________________
CHI WAI CHUCK CHANG
4 of 6
FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
L 78 R5 Defense # 253792200
_________________________________________________________________________________________
Annexed NOTICE OF MOTION AND AFFIRMATION upon undersigned attorneys by E-FILE.
NAME AND ADDRESS
Lipsitz Green Scime Cambria LLP
Attorneys for Plaintiff
42 Delaware Avenue, Suite 120
Buffalo, NY 14202-3924
Attorney Certification:
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York
State, certifies that, upon information and belief, and after reasonable inquiry, the contentions contained in
the annexed document(s) are not frivolous.
CHI WAI CHUCK CHANG
5 of 6
FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022
Index No. E174178/2021
SUPREME COURT OF THE STATE OF NEW
YORK
COUNTY OF NIAGARA
JOHN W. CRAWFORD III,
Plaintiff,
-against-
ROBIN E. GARDNER,
Defendant.
NOTICE OF MOTION & AFFIRMATION
Martyn, Smith, Murray & Yong, Esqs.
Attorneys for Defendant
Office and P.O. Address
P.O. Box 6835
Scranton, Pennsylvania 18505-6835
516-739-0000 Fax 800-283-7889
6 of 6
Preview
FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NIAGARA ------------------------------------------------------------------X JOHN W. CRAWFORD III, Plaintiff, AFFIRMATION IN -against- SUPPORT ROBIN E. GARDNER, Index No. E174178/2021 Defendant. ------------------------------------------------------------------X CHI WAI CHUCK CHANG, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true, upon information and belief, under penalties of perjury: 1. I am an attorney associated with the law firm of MARTYN, SMITH, MURRAY & YONG, ESQS., attorneys for the defendant, ROBIN E. GARDNER. I am fully familiar with the facts and circumstances set forth herein based upon my review of a file maintained in this office. 2. The affirmation is submitted in support of defendant’s motion for an Order pursuant to 22 NYCRR § 202.21(e), vacating the Note of Issue and Certificate of Readiness filed and served by the plaintiff and striking this action from the Trial Calendar on the grounds that the Certificate of Readiness is incorrect and that all discovery now known to be necessary has not been completed; or, an Order pursuant to CPLR §§ 3124 and 3126, compelling plaintiff to appear for her Independent Medical Examination. Moreover, it is respectfully submitted that defendant’s time to move for summary judgment be extended 120 days from the completion of discovery. 3. This is an action to recover damages resulting from an alleged motor vehicle accident that occurred on August 2, 2019, at a point near its intersection with Lockport Street, both public highways located within the City of Niagara Falls, State of New York. As a result of the accident, the plaintiff has alleged personal injuries. 4. Plaintiff commenced this action with the e-filing and service of a Summons and Verified Complaint dated February 9, 2021. The moving defendant joined issue through the service of a Verified Answer 1 of 6 FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 dated March 5, 2021. See Summons, Verified Complaint, and Verified Answer annexed hereto collectively as Exhibit A. 5. Plaintiff filed his Note of Issue and Certificate of Readiness for Trial on February 2, 2022. See Note of Issue and Certificate of Readiness for Trial, annexed hereto collectively, as Exhibit B. Accordingly, this motion is timely as it is being made within 20 days of the receipt of the plaintiff’s Note of Issue and Certificate of Readiness. 6. This action is not ready for trial as plaintiff has not appeared for his Independent Medical Examination. 7. The Plaintiff’s EBT was held on October 19, 2021. 8. Plaintiff incorrectly states on the Note of Issue and Certificate of Readiness that this case is ready for trial. This representation made by plaintiff’s counsel is inconsistent with the current status of this action as plaintiff has failed to appear for an independent medical examination. 9. It is respectfully submitted that the defendants, herein will be severely prejudiced should plaintiff’s Note of Issue not be stricken from the calendar, as the outstanding discovery is material, vital and necessary for a proper defense of the within matter. The plaintiff’s Note of Issue and Certificate of Readiness should be vacated and the matter should be stricken from the trial calendar, where a plaintiff’s Certificate of Readiness contains incorrect representations are material fact by asserting that discovery proceedings necessary have been completed, yet, outstanding discovery remains present. Garofalo v. Mercy Hospital, 706 N.Y.S.2d 477 (2nd Dept. 2000). 10. Alternatively, it is respectfully submitted that an Order should be issued compelling plaintiff to appear for a physical examination by a date certain, or else be precluded from offering any evidence as to damages at the time of trial. WHEREFORE, it is respectfully requested that the Court issue an Order striking the above-entitled action from the calendar, or preventing it from being placed upon the calendar, vacating plaintiff's Note of Issue and Certificate of Readiness for trial, or in the alternative, allowing this case to remain on the calendar, directing plaintiff to provide all outstanding discovery by a date certain or else be precluded from offering any evidence as to damages at the time of trial,and allowing an additional 120 days for dispositive motions once discovery is completed, and for such other and further relief as to the court may deem just and proper. 2 of 6 FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 Dated: Hauppauge, New York February 17, 2022 ____________________________________ CHI WAI CHUCK CHANG 3 of 6 FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 Certificate of Compliance Pursuant to 22 NYCRR 2.2.8-b(a) It is hereby certified that the information below sets forth the specifications by which this computer-generated brief complies with rule 22 NYCRR 202.8-b(a) of the Court The word processor states that this affirmation contains _670_____ words. The typeface (font) is Times New Roman. The point size is 12. The line spacing is double. ____________________________________ CHI WAI CHUCK CHANG 4 of 6 FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 L 78 R5 Defense # 253792200 _________________________________________________________________________________________ Annexed NOTICE OF MOTION AND AFFIRMATION upon undersigned attorneys by E-FILE. NAME AND ADDRESS Lipsitz Green Scime Cambria LLP Attorneys for Plaintiff 42 Delaware Avenue, Suite 120 Buffalo, NY 14202-3924 Attorney Certification: Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief, and after reasonable inquiry, the contentions contained in the annexed document(s) are not frivolous. CHI WAI CHUCK CHANG 5 of 6 FILED: NIAGARA COUNTY CLERK 02/18/2022 09:54 AM INDEX NO. E174178/2021 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 02/18/2022 Index No. E174178/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NIAGARA JOHN W. CRAWFORD III, Plaintiff, -against- ROBIN E. GARDNER, Defendant. NOTICE OF MOTION & AFFIRMATION Martyn, Smith, Murray & Yong, Esqs. Attorneys for Defendant Office and P.O. Address P.O. Box 6835 Scranton, Pennsylvania 18505-6835 516-739-0000 Fax 800-283-7889 6 of 6