Preview
FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ABIMBOLA AYORINDE,
Plaintiff(s), AFFIRMATION
IN SUPPORT
-against-
Index No.:522080/2016E
KEVIN CABRAL and KIAH A. CABRAL,
Defendants.
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Deirdre J. Tobin, an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following under the penalties of perjury and
pursuant to CPLR 2106:
1. I am associated with the LAW OFFICE OF DEIRDRE J. TOBIN &
ASSOCIATES, attorneys for defendant(s), KEVIN CABRAL and KIAH A. CABRAL,
in the above matter, and as such am fully familiar with the facts and circumstances
herein, based on a review of the contents of the file maintained in this office.
2. I make this affirmation in support of the within motion seeking (a) an Order
pursuant to (a) 22 NYCRR 202.21(e), vacating the Note of Issue and Certificate of
Readiness filed and served by the plaintiff(s), and striking this action from the Trial
Calendar on the grounds that the Certificate of Readiness is incorrect in that all discovery
now known to be necessary has not been completed; and therefore, this case is not ready
to proceed to trial; (b) An Order pursuant to CPLR Rules 3124 and 3126(2), directing the
plaintiff(s) to comply with all outstanding discovery yet to be completed; or, in the
alternative, precluding the plaintiff(s) from offering any evidence at the trial of this action
as to any subject on which discovery has not been provided; (c) An Order pursuant to
CPLR 3212(a) extending defendant(s) time to move for summary judgment until 120
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days from the date of completion of all outstanding discovery, or to a date that this Court
deems just and proper; (d) for such other and further relief as this Court may deem to be
just and proper.
3. This is an action for personal injuries allegedly sustained by plaintiff as a result
of a motor vehicle accident which occurred on 05/16/2014.
4. This action was commenced by service of plaintiff's summons and Complaint
on or about 12/02/2016. Issue was joined when defendant served an Answer on or about
02/22/2017. Copies of plaintiffs Summons & Complaint and Defendant's answers are
annexed hereto collectively annexed hereto as Exhibit "A".
5. Pursuant to demands, the plaintiff provided a Bill of particulars on or
about 05/30/2017. A copy of the Bill of particulars is annexed hereto as Exhibit "B".
The Bill of particulars alleges negligence by the defendant as well as personal injuries to
the plaintiff including disc herniation of the cervical spine C2-C3, C3-C4, C5-C6,
cervical radiculopathy, meniscus tears and ligament tears of the right knee, sprain and
strains of the right knee, right knee internal derangement, traumatic tendinitis and
contusion to the right shoulder.
6. On 06/21/2017, the parties appeared for a preliminary conference.
Pursuant to the order, the plaintiff was to provide a number of authorizations to be served
by 07/22/2017. In addition, the parties were to appear for examination before trial on
09/21/2017. Thereafter, the plaintiff was to have an examination by an independent
medical examining physician within 45 days following the conclusion of the plaintiff's
deposition. A copy of the preliminary conference order is annexed hereto as Exhibit
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"C". The preliminary conference order scheduled a compliance conference for
12/07/2017.
7. This office was unaware a Note of Issue had been previously filed by the
Plaintiff. Defendant had no record of receiving the Note of Issue via E-file and/or by
mail. This motion has been prepared after review of the file.Annexed hereto as Exhibit
"D"
is a copy of the note of issue and certificate of readiness e-filed by the Plaintiff.
8. That section of the certificate of readiness for trial(item number 7) noting
notes that discovery proceedings now known to be necessary is completed is false. It is
clear that the certificate of readiness is wrong, and therefore the note of issue must be
struck.
9. The Examination Before Trial of Plaintiff was held on 07/11/2018 and the
Examination Before Trial of the Defendant was held 07/20/2018. In order to properly
defend this matter, the defendant had demanded independent medical examinations of the
plaintiff, post-deposition discovery and HIPAA complaint trial authorizations. The
plaintiff seeks to preclude the remaining material items of discovery, which must not be
allowed.
10. A good faith attempt to resolve the issues without the Court's intervention
was attempted by the undersigned, by calling plaintiffs attorney on 07/26/2018. A
conversation was held with Matthew, requesting withdrawal of the note of issue and
certificate of readiness. Matthew denied our request to withdraw the Note of Issue.
11. The discovery that remains to be completed is relevant and necessary to
the proper defense of the defendant in this action. The moving defendant would be
severely prejudiced in defending the claims asserted by the plaintiff herein, ifdefendant
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was required to proceed to trial without the above-mentioned disclosure, the very basic of
discovery items. This outstanding discovery has not been waived by the defendant.
Therefore, the Note of Issue and Certificate of Readiness for trial should be vacated and
the case should be stricken from the trialcalendar.
12. It is also respectfully requested that, in light of the discovery issues raised
in this motion, the defendants time to move for summary judgment be extended until 120
days from the date of completion of all discovery, or to a date that this Court deems just
and proper.
13. The Courts have consistently held that a Note of Issue will be vacated ifa
material fact is incorrect in the Statement of Readiness. In Ortiz v. Arias, 285 A.D.2d
(1st
390, 727 N.Y.S.2d 879 Dept. 2001), the defendants moved to vacate the plaintiff's
Note of Issue and the Trial Court denied the motion. The defendants appealed and the
Appellate Court reversed the lower Court's decision and vacated the Note of Issue and
Statement of Readiness stating:
"'We have repeatedly held that a note of issue should be vacated when it
facts,'
is based upon a certificate of readiness that contains erroneous
including an incorrect statement that all physical examinations and other
discovery have been completed or waived. (Citations omitted) Here,
plaintiffs'
certificate of readiness asserts that all physical examinations
had been conducted and all medical reports had been exchanged, when it
is uncontested that infant plaintiffs, allegedly injured by exposure to lead
paint, had not been examined, and plaintiffs had not given defendants any
reports..."
medical
(1St
14. In Barnett v. DeMian, 207 A.D.2d 693, 616 N.Y.S.2d 491 Dept. 1994)
held:
"The Court abused its discretion in denying the motion to strike plaintiff's
note of issue and statement of readiness inasmuch as the statement of
readiness incorrectly states that all necessary discovery had been
completed or waived. (Citation omitted)
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It is conceded that the deposition of plaintiff by defendant has not been
taken. Plaintiff filed the note of issue five weeks before the expiration of
the court-ordered deadline to take plaintiff's deposition. Under these
discretion."
circumstances, denial of the motion is an abuse of
(1st
15. In Gomes v. Espindola, 32 A.D.3d 699, 822 N.Y.S.2d 2, Dept. 2006),
the Appellate Court held:
defendants'
"Supreme Court also erred in denying that aspect of motion
that sought to vacate the note of issue. 'At any time, the court... may
vacate a note of issue if itappears that a material fact in the certificate of
readiness is incorrect, or that the certificate of readiness fails to comply
with the requirements of this section in some material respect'. (Citations
omitted). The certificate of readiness contains multiple, material
incorrect assertions, including that all discovery was complete. (Emphasis
added).
See also, Gregory v. Ford Motor Credit Company, 298 A.D.2d 496, 748 N.Y.S.2d 507
(2nd
Dept. 2002); Simon v. City of Syracuse Police Department, 13 A.D.3d 1228, 787
(4th
N.Y.S.2d 577 Dept. 2004).
16. In light of the above, the Note of Issue and Statement of Readiness should
be vacated and this matter stricken from the Court's Trial Calendar.
17. It is respectfully submitted that this motion was made within twenty (20)
days of receipt of the Note of Issue and Certificate of Readiness for trial pursuant to Rule
202.21(e) of the Uniform Rules for the New York State Trial Courts.
18. No prior application for the relief requested herein has been made.
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WHEREFORE, the Defendant requests that the within motion be granted in its
entirety, together with such other and further relief as this Court may deem to be just and
proper.
Dated: Garden City, New York
July 27, 2018
Yours, etc.,
LAW OFFICE OF D. TOBIN & ASSOC.
y:
e . T n, Esq.
Attor eys efendant
Kevin Cabral and Kiah A. Cabral
P.O. Box 9330
Garden City, NY 11530
(516) 403-1777
File No.: 17-00054
To:
Gary P. Kauget, PC
Attorney for Plaintiff
9201 Fourth Avenue, Suite 707
Brooklyn, NY 11209
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Preview
FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS —- ———————- ——- — ————X ------------------------------------------------------------------X ABIMBOLA AYORINDE, Plaintiff(s), AFFIRMATION IN SUPPORT -against- Index No.:522080/2016E KEVIN CABRAL and KIAH A. CABRAL, Defendants. ------------------------------------------------------------------X Deirdre J. Tobin, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am associated with the LAW OFFICE OF DEIRDRE J. TOBIN & ASSOCIATES, attorneys for defendant(s), KEVIN CABRAL and KIAH A. CABRAL, in the above matter, and as such am fully familiar with the facts and circumstances herein, based on a review of the contents of the file maintained in this office. 2. I make this affirmation in support of the within motion seeking (a) an Order pursuant to (a) 22 NYCRR 202.21(e), vacating the Note of Issue and Certificate of Readiness filed and served by the plaintiff(s), and striking this action from the Trial Calendar on the grounds that the Certificate of Readiness is incorrect in that all discovery now known to be necessary has not been completed; and therefore, this case is not ready to proceed to trial; (b) An Order pursuant to CPLR Rules 3124 and 3126(2), directing the plaintiff(s) to comply with all outstanding discovery yet to be completed; or, in the alternative, precluding the plaintiff(s) from offering any evidence at the trial of this action as to any subject on which discovery has not been provided; (c) An Order pursuant to CPLR 3212(a) extending defendant(s) time to move for summary judgment until 120 1 of 6 FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 days from the date of completion of all outstanding discovery, or to a date that this Court deems just and proper; (d) for such other and further relief as this Court may deem to be just and proper. 3. This is an action for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident which occurred on 05/16/2014. 4. This action was commenced by service of plaintiff's summons and Complaint on or about 12/02/2016. Issue was joined when defendant served an Answer on or about 02/22/2017. Copies of plaintiffs Summons & Complaint and Defendant's answers are annexed hereto collectively annexed hereto as Exhibit "A". 5. Pursuant to demands, the plaintiff provided a Bill of particulars on or about 05/30/2017. A copy of the Bill of particulars is annexed hereto as Exhibit "B". The Bill of particulars alleges negligence by the defendant as well as personal injuries to the plaintiff including disc herniation of the cervical spine C2-C3, C3-C4, C5-C6, cervical radiculopathy, meniscus tears and ligament tears of the right knee, sprain and strains of the right knee, right knee internal derangement, traumatic tendinitis and contusion to the right shoulder. 6. On 06/21/2017, the parties appeared for a preliminary conference. Pursuant to the order, the plaintiff was to provide a number of authorizations to be served by 07/22/2017. In addition, the parties were to appear for examination before trial on 09/21/2017. Thereafter, the plaintiff was to have an examination by an independent medical examining physician within 45 days following the conclusion of the plaintiff's deposition. A copy of the preliminary conference order is annexed hereto as Exhibit 2 of 6 FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 "C". The preliminary conference order scheduled a compliance conference for 12/07/2017. 7. This office was unaware a Note of Issue had been previously filed by the Plaintiff. Defendant had no record of receiving the Note of Issue via E-file and/or by mail. This motion has been prepared after review of the file.Annexed hereto as Exhibit "D" is a copy of the note of issue and certificate of readiness e-filed by the Plaintiff. 8. That section of the certificate of readiness for trial(item number 7) noting notes that discovery proceedings now known to be necessary is completed is false. It is clear that the certificate of readiness is wrong, and therefore the note of issue must be struck. 9. The Examination Before Trial of Plaintiff was held on 07/11/2018 and the Examination Before Trial of the Defendant was held 07/20/2018. In order to properly defend this matter, the defendant had demanded independent medical examinations of the plaintiff, post-deposition discovery and HIPAA complaint trial authorizations. The plaintiff seeks to preclude the remaining material items of discovery, which must not be allowed. 10. A good faith attempt to resolve the issues without the Court's intervention was attempted by the undersigned, by calling plaintiffs attorney on 07/26/2018. A conversation was held with Matthew, requesting withdrawal of the note of issue and certificate of readiness. Matthew denied our request to withdraw the Note of Issue. 11. The discovery that remains to be completed is relevant and necessary to the proper defense of the defendant in this action. The moving defendant would be severely prejudiced in defending the claims asserted by the plaintiff herein, ifdefendant 3 of 6 FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 was required to proceed to trial without the above-mentioned disclosure, the very basic of discovery items. This outstanding discovery has not been waived by the defendant. Therefore, the Note of Issue and Certificate of Readiness for trial should be vacated and the case should be stricken from the trialcalendar. 12. It is also respectfully requested that, in light of the discovery issues raised in this motion, the defendants time to move for summary judgment be extended until 120 days from the date of completion of all discovery, or to a date that this Court deems just and proper. 13. The Courts have consistently held that a Note of Issue will be vacated ifa material fact is incorrect in the Statement of Readiness. In Ortiz v. Arias, 285 A.D.2d (1st 390, 727 N.Y.S.2d 879 Dept. 2001), the defendants moved to vacate the plaintiff's Note of Issue and the Trial Court denied the motion. The defendants appealed and the Appellate Court reversed the lower Court's decision and vacated the Note of Issue and Statement of Readiness stating: "'We have repeatedly held that a note of issue should be vacated when it facts,' is based upon a certificate of readiness that contains erroneous including an incorrect statement that all physical examinations and other discovery have been completed or waived. (Citations omitted) Here, plaintiffs' certificate of readiness asserts that all physical examinations had been conducted and all medical reports had been exchanged, when it is uncontested that infant plaintiffs, allegedly injured by exposure to lead paint, had not been examined, and plaintiffs had not given defendants any reports..." medical (1St 14. In Barnett v. DeMian, 207 A.D.2d 693, 616 N.Y.S.2d 491 Dept. 1994) held: "The Court abused its discretion in denying the motion to strike plaintiff's note of issue and statement of readiness inasmuch as the statement of readiness incorrectly states that all necessary discovery had been completed or waived. (Citation omitted) 4 of 6 FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 It is conceded that the deposition of plaintiff by defendant has not been taken. Plaintiff filed the note of issue five weeks before the expiration of the court-ordered deadline to take plaintiff's deposition. Under these discretion." circumstances, denial of the motion is an abuse of (1st 15. In Gomes v. Espindola, 32 A.D.3d 699, 822 N.Y.S.2d 2, Dept. 2006), the Appellate Court held: defendants' "Supreme Court also erred in denying that aspect of motion that sought to vacate the note of issue. 'At any time, the court... may vacate a note of issue if itappears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect'. (Citations omitted). The certificate of readiness contains multiple, material incorrect assertions, including that all discovery was complete. (Emphasis added). See also, Gregory v. Ford Motor Credit Company, 298 A.D.2d 496, 748 N.Y.S.2d 507 (2nd Dept. 2002); Simon v. City of Syracuse Police Department, 13 A.D.3d 1228, 787 (4th N.Y.S.2d 577 Dept. 2004). 16. In light of the above, the Note of Issue and Statement of Readiness should be vacated and this matter stricken from the Court's Trial Calendar. 17. It is respectfully submitted that this motion was made within twenty (20) days of receipt of the Note of Issue and Certificate of Readiness for trial pursuant to Rule 202.21(e) of the Uniform Rules for the New York State Trial Courts. 18. No prior application for the relief requested herein has been made. 5 of 6 FILED: KINGS COUNTY CLERK 07/27/2018 04:15 PM INDEX NO. 522080/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/27/2018 WHEREFORE, the Defendant requests that the within motion be granted in its entirety, together with such other and further relief as this Court may deem to be just and proper. Dated: Garden City, New York July 27, 2018 Yours, etc., LAW OFFICE OF D. TOBIN & ASSOC. y: e . T n, Esq. Attor eys efendant Kevin Cabral and Kiah A. Cabral P.O. Box 9330 Garden City, NY 11530 (516) 403-1777 File No.: 17-00054 To: Gary P. Kauget, PC Attorney for Plaintiff 9201 Fourth Avenue, Suite 707 Brooklyn, NY 11209 6 of 6