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FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
___________________________________________________________________Ç
MICHAEL SARKODIE-ADDO,
Plaintiff, AFFIRMATION
IN SUPPORT
-against-
Index No. 812020/2021E
,MARVIN SHAWN BYRD JR., MMG LOGISTICS
LLC and MUSTAFA ABDI,
Defendants,
____________________________________________________________________Ç
David W. Brand, an attorney duly admitted to practice law in the courts of the State of
New York, hereby affirms the following to be true, under the penalties of perjury:
1. I am a member of the law firm of Brand Glick & Brand, attorneys for the
defendants in the above entitled action and, as such, I am fully familiar with the facts and
circumstances of this matter, based upon a review of the materials contained within the file
maintained by my our office.
2. This Affirmation is respectfully submitted in support of the within motion, which
seeks an order:
(a) Pursuant to CPLR § 3402 and 22 N.Y.C.R.R. 202.21(e), vacating
plaintiff's Note of Issue and Certificate of Readiness combined with
striking the action from the trial calendar as discovery is not complete;
or in the alternative,
(b) Pursuant to CPLR § 3124, compelling the plaintiff to provide all
outstanding discovery by a date certain, or in the alternative,
(c) Pursuant to CPLR § 3126, precluding the plaintiff from testifying at
trial on the issue of damages, based upon plaintiff's failure to provide
material and necessary discovery,
defendants'
(d) Extending time to move for summary judgment based upon
the aforesaid outstanding discovery; and
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(e) For such other and further relief as this Court may deem just and
proper.
FACTUAL AND PROCEDURAL SUMMARY
3. This action is for personal injuries and arises from a motor vehicle accident which
is alleged to have occurred on May 7, 2021, at 351 Coster Street at or near its intersection with
East Bay Avenue, in the County of Bronx, State of New York.
4. Plaintiff commenced this action by the filing and service of a Summons and
Complaint on or about September 3, 2021, annexed hereto as Exhibit "A". Defendants joined
issue by service of an Answer, on or about October 15, 2021, annexed hereto as Exhibit "B".
5. On November 24, 2021 an automatic Preliminary Conference order and Case
Scheduling Order was issued by the Court. The order directed discovery deadlines. It also
directed that the date to file Note of Issue will be determined at the final Compliance
Conference. However, should the parties consent that all discovery has been completed, the
parties are to e-file a stipulation in this regard. Exhibit "C". Importantly, the parties have not
stipulated that all discovery is complete and a final Compliance Conference has not been held.
6. Plaintiff deposition was held on April 15, 2022 and IMES were scheduled and
conducted. During his deposition plaintiff testified that he was in possession of additional
photographs of the his vehicle and trailer. Additionally, plaintiff testified that he has been
treating with his primary care doctor before and after the time of the accident. He also
testified that he continues to go to physical therapy. Based on plaintiff's testimony this
office served a Notice for Discovery and Inspection for additional photographs in the
possession of the plaintiff, as well as additional HIPAA authorizations. Attached as Exhibit
"D"
is a copy of Notice for Discovery and Inspection as well as an excerpt from the
transcript.
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7. Furthermore, during his IME, plaintiff informed the IME doctor that he still
goes once a week to physical therapy and is still with Dr. De Moura, the surgeon
treating
who performed his procedure. See Exhibit "E". As such, defendant is entitled to updated
HIPAA authorizations with respect to the physical therapy and Dr. De Moura's records.
8. On March 21, 2023, plaintiff e-filed his Note of Issue, Certificate of
Readiness and Compliance Affirmation, certifying that all outstanding had been
discovery
completed. Exhibit "F". Such certification, however, was inaccurate as there are still
outstanding discovery.
9. Moreover, as previously mentioned, the Court did not set down a date that the
Note of Issue should be filed by nor did not the parties stipulate to the filing of the Note of
Issue as required by the Court.
ARGUMENT
10. It is undisputed that all of the above discovery is relevant herein, required to
be provided as a matter of law, and necessary for our defense in this matter. As such,
allowing the plaintiffs case to remain on the trial calendar, before all discovery is completed,
would prejudice the defendants
11. It has clearly been established that a Note of Issue must be vacated when
discovery remains outstanding. See, 22 N.Y.C.R.R. 202.21(e). A Note of Issue may not be
filed until all outstanding discovery that is material and necessary to the defense and
prosecution is provided and counsel has had the opportunity to review the discovery and
conduct further discovery if necessary.
12. Uniform Rules - Trial Court Section in 'relevant
202.21(e) provides, part,
Within 20 days after service of a Note of Issue and Certificate of
Readiness, any party to the action...may move to vacate the Note
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of Issue, upon Affidavit showing in what respects the case is not
ready for trial, and that the Court may vacate the Note of Issue if it
appears that a material fact in the Certificate of Readiness fails to
comply with the requirements of this Section in some material
respect.
13. It is well settled in New York that where Certificates of Readiness incorrectly
state that all necessary discovery has been completed or waived, the defendant's motion to
strike the plaintiff's Note of Issue and Certificate of Readiness should be granted. Barnett v.
(1't
DeMian, 207 A.D.2d 693, 616 N.Y.S.2d 491 Dept. 1994); Frierson v. Concourse Plaza
(1st
Assoc., 189 A.D.2d 609, 592 N.Y.S.2d 309 Dept. 1993); See also, Siegel, Handbook on
New York Practice, Section 370 (1991).
14. Here, it is undisputed that there is discovery outstanding, to wit, defense
counsel requires HIPAA authorizations which is essential in defense of this action as it
relates to the issues of damages in this matter.
15. Furthermore, even if the plaintiff s discovery proceedings had been
completed, when a defendant has not completed its discovery and has not had a full
opportunity to do so, the note of issue should be stricken. Web Transmissions, Inc. v. Jetro
Automatic Transmissions, Inc., 20 A.D.2d 902, 249 N.Y.S.2d 17 (2nd Dept. 1964); Renault,
Inc. v. Auto Imports, Ltd., 15 A.D.2d 905, 225 N.Y.S.2d 842 (1st Dept. 1962).
16. Your affirmant respectfully submits that, due to discovery being outstanding,
this is not a case that can remain on the calendar while the aforementioned discovery is
completed. To the contrary, this is just the kind of case where the Note of Issue must be
vacated. Permitting this case to remain on the trial calendar subject to the completion of
outstanding discovery is simply not an acceptable alternative remedy as it would prejudice
the defendants with the possibility of an imminent trial date prior to the completion of
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discovery.
17. Accordingly, the Note of Issue and Certificate of Readiness herein must be
vacated.
PLAINTIFF MUST BE COMPELLED
TO PROVIDE ALL OUTSTANDING DISCOVERY
18. The aforementioned requested discovery are necessary to properly defend this
action it relates to plaintiff's claimed damages.
19. However, if the court does not see fit to strike the Note of Issue and this case
is to remain on the trial calendar, an order should be issued compelling plaintiff to provide
outstanding discovery set forth pursuant to CPLR §§ 3124 and 3126 and plaintiff to provide
said the date set the in the event of non-
outstanding discovery responses, by by court, or,
compliance, precluding the plaintiff from providing evidence or testimony at the time of trial
regarding plaintiff's damages
AN EXTENSION OF TIME TO FILE SUMMARY JUDGMENT
MOTIONS IS NECESSARY
20. Lastly, to the extent that this Court does not vacate the Note of Issue, then this
motion also seeks an extension of time to file summary judgment motion as discovery is not
completed. However, defendants cannot do so until all discovery is completed. Thus, an
extension of time to file summary judgment motions must be granted to the defendants.
Without this relief, defendants will be prejudiced in their ability to potentially file a
complete motion.
21. No prior application for the requested relief has been made.
WHEREFORE, it is respectfully requested this Honorable Court issue an Order in
accordance with the relief requested herein and grant such other and further relief as this
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Court may deem just and proper.
Dated: East Meadow, New York
April 3, 2023 /
DAVID W. ND
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ATTORNEY CERTIFICATION OF COMPLIANCE
I hereby certify that, pursuant to § 202.8-b of the Uniform Rules for the Supreme
Court, the foregoing Affirmation in Support was prepared on a computer Microsoft
using
Word and complies with the word count limit for a total of 1374 words.
Dated: East Meadow, New York
April 3, 2023
DAVID W. BRAN
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Preview
FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ___________________________________________________________________Ç MICHAEL SARKODIE-ADDO, Plaintiff, AFFIRMATION IN SUPPORT -against- Index No. 812020/2021E ,MARVIN SHAWN BYRD JR., MMG LOGISTICS LLC and MUSTAFA ABDI, Defendants, ____________________________________________________________________Ç David W. Brand, an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following to be true, under the penalties of perjury: 1. I am a member of the law firm of Brand Glick & Brand, attorneys for the defendants in the above entitled action and, as such, I am fully familiar with the facts and circumstances of this matter, based upon a review of the materials contained within the file maintained by my our office. 2. This Affirmation is respectfully submitted in support of the within motion, which seeks an order: (a) Pursuant to CPLR § 3402 and 22 N.Y.C.R.R. 202.21(e), vacating plaintiff's Note of Issue and Certificate of Readiness combined with striking the action from the trial calendar as discovery is not complete; or in the alternative, (b) Pursuant to CPLR § 3124, compelling the plaintiff to provide all outstanding discovery by a date certain, or in the alternative, (c) Pursuant to CPLR § 3126, precluding the plaintiff from testifying at trial on the issue of damages, based upon plaintiff's failure to provide material and necessary discovery, defendants' (d) Extending time to move for summary judgment based upon the aforesaid outstanding discovery; and 1 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 (e) For such other and further relief as this Court may deem just and proper. FACTUAL AND PROCEDURAL SUMMARY 3. This action is for personal injuries and arises from a motor vehicle accident which is alleged to have occurred on May 7, 2021, at 351 Coster Street at or near its intersection with East Bay Avenue, in the County of Bronx, State of New York. 4. Plaintiff commenced this action by the filing and service of a Summons and Complaint on or about September 3, 2021, annexed hereto as Exhibit "A". Defendants joined issue by service of an Answer, on or about October 15, 2021, annexed hereto as Exhibit "B". 5. On November 24, 2021 an automatic Preliminary Conference order and Case Scheduling Order was issued by the Court. The order directed discovery deadlines. It also directed that the date to file Note of Issue will be determined at the final Compliance Conference. However, should the parties consent that all discovery has been completed, the parties are to e-file a stipulation in this regard. Exhibit "C". Importantly, the parties have not stipulated that all discovery is complete and a final Compliance Conference has not been held. 6. Plaintiff deposition was held on April 15, 2022 and IMES were scheduled and conducted. During his deposition plaintiff testified that he was in possession of additional photographs of the his vehicle and trailer. Additionally, plaintiff testified that he has been treating with his primary care doctor before and after the time of the accident. He also testified that he continues to go to physical therapy. Based on plaintiff's testimony this office served a Notice for Discovery and Inspection for additional photographs in the possession of the plaintiff, as well as additional HIPAA authorizations. Attached as Exhibit "D" is a copy of Notice for Discovery and Inspection as well as an excerpt from the transcript. 2 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 7. Furthermore, during his IME, plaintiff informed the IME doctor that he still goes once a week to physical therapy and is still with Dr. De Moura, the surgeon treating who performed his procedure. See Exhibit "E". As such, defendant is entitled to updated HIPAA authorizations with respect to the physical therapy and Dr. De Moura's records. 8. On March 21, 2023, plaintiff e-filed his Note of Issue, Certificate of Readiness and Compliance Affirmation, certifying that all outstanding had been discovery completed. Exhibit "F". Such certification, however, was inaccurate as there are still outstanding discovery. 9. Moreover, as previously mentioned, the Court did not set down a date that the Note of Issue should be filed by nor did not the parties stipulate to the filing of the Note of Issue as required by the Court. ARGUMENT 10. It is undisputed that all of the above discovery is relevant herein, required to be provided as a matter of law, and necessary for our defense in this matter. As such, allowing the plaintiffs case to remain on the trial calendar, before all discovery is completed, would prejudice the defendants 11. It has clearly been established that a Note of Issue must be vacated when discovery remains outstanding. See, 22 N.Y.C.R.R. 202.21(e). A Note of Issue may not be filed until all outstanding discovery that is material and necessary to the defense and prosecution is provided and counsel has had the opportunity to review the discovery and conduct further discovery if necessary. 12. Uniform Rules - Trial Court Section in 'relevant 202.21(e) provides, part, Within 20 days after service of a Note of Issue and Certificate of Readiness, any party to the action...may move to vacate the Note 3 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 of Issue, upon Affidavit showing in what respects the case is not ready for trial, and that the Court may vacate the Note of Issue if it appears that a material fact in the Certificate of Readiness fails to comply with the requirements of this Section in some material respect. 13. It is well settled in New York that where Certificates of Readiness incorrectly state that all necessary discovery has been completed or waived, the defendant's motion to strike the plaintiff's Note of Issue and Certificate of Readiness should be granted. Barnett v. (1't DeMian, 207 A.D.2d 693, 616 N.Y.S.2d 491 Dept. 1994); Frierson v. Concourse Plaza (1st Assoc., 189 A.D.2d 609, 592 N.Y.S.2d 309 Dept. 1993); See also, Siegel, Handbook on New York Practice, Section 370 (1991). 14. Here, it is undisputed that there is discovery outstanding, to wit, defense counsel requires HIPAA authorizations which is essential in defense of this action as it relates to the issues of damages in this matter. 15. Furthermore, even if the plaintiff s discovery proceedings had been completed, when a defendant has not completed its discovery and has not had a full opportunity to do so, the note of issue should be stricken. Web Transmissions, Inc. v. Jetro Automatic Transmissions, Inc., 20 A.D.2d 902, 249 N.Y.S.2d 17 (2nd Dept. 1964); Renault, Inc. v. Auto Imports, Ltd., 15 A.D.2d 905, 225 N.Y.S.2d 842 (1st Dept. 1962). 16. Your affirmant respectfully submits that, due to discovery being outstanding, this is not a case that can remain on the calendar while the aforementioned discovery is completed. To the contrary, this is just the kind of case where the Note of Issue must be vacated. Permitting this case to remain on the trial calendar subject to the completion of outstanding discovery is simply not an acceptable alternative remedy as it would prejudice the defendants with the possibility of an imminent trial date prior to the completion of 4 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 discovery. 17. Accordingly, the Note of Issue and Certificate of Readiness herein must be vacated. PLAINTIFF MUST BE COMPELLED TO PROVIDE ALL OUTSTANDING DISCOVERY 18. The aforementioned requested discovery are necessary to properly defend this action it relates to plaintiff's claimed damages. 19. However, if the court does not see fit to strike the Note of Issue and this case is to remain on the trial calendar, an order should be issued compelling plaintiff to provide outstanding discovery set forth pursuant to CPLR §§ 3124 and 3126 and plaintiff to provide said the date set the in the event of non- outstanding discovery responses, by by court, or, compliance, precluding the plaintiff from providing evidence or testimony at the time of trial regarding plaintiff's damages AN EXTENSION OF TIME TO FILE SUMMARY JUDGMENT MOTIONS IS NECESSARY 20. Lastly, to the extent that this Court does not vacate the Note of Issue, then this motion also seeks an extension of time to file summary judgment motion as discovery is not completed. However, defendants cannot do so until all discovery is completed. Thus, an extension of time to file summary judgment motions must be granted to the defendants. Without this relief, defendants will be prejudiced in their ability to potentially file a complete motion. 21. No prior application for the requested relief has been made. WHEREFORE, it is respectfully requested this Honorable Court issue an Order in accordance with the relief requested herein and grant such other and further relief as this 5 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 Court may deem just and proper. Dated: East Meadow, New York April 3, 2023 / DAVID W. ND 6 of 7 FILED: BRONX COUNTY CLERK 04/04/2023 04:21 PM INDEX NO. 812020/2021E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/04/2023 ATTORNEY CERTIFICATION OF COMPLIANCE I hereby certify that, pursuant to § 202.8-b of the Uniform Rules for the Supreme Court, the foregoing Affirmation in Support was prepared on a computer Microsoft using Word and complies with the word count limit for a total of 1374 words. Dated: East Meadow, New York April 3, 2023 DAVID W. BRAN 7 of 7