Preview
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------..-X
JOSEPH ITARA and TABETHA ITARA,
Index No.: 152948/2020
Plaintiffs,
AFFIRMATION
-against-
IN SUPPORT OF
DEFENDANTS'
MASARYK TOWERS CORPORATION d/b/a
MOTION TO VACATE
MASARYK TOWERS
MANAGEMENT, and
THE NOTE OF ISSUE
METRO MANAGEMENT & DEVELOPMENT INC.,
a/k/a METRO MANAGEMENT DEVEL., INC.,
Return Date: July 21, 2022
Defendant.
-----------------------------------------------------------X
Judge: Hon. W. Franc Perry
MASARYK TOWERS CORPORATION i/s/h/a MASARYK
TOWERS CORPORATION d/b/a MASARYK TOWERS Index No.
Third-Party
MANAGEMENT, 595639/2021
Third-Party Plaintiff,
- against -
CENTENNIAL ELEVATOR INDUSTRIES, INC.,
Third-Party Defendant.
-----------------------------------------------------------Ç
SUSAN J. STROMBERG, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true under the penalty of perjury:
1. I am a partner with the law firm of Milber Makris Plousadis & Seiden LLP,
attorneys for Defendants/Third-Party Plaintiffs MASARYK TOWFRS CORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT
("Masaryk") and METRO MANAGEMENT & DEVELOPMENT INC. a/k/a METRO
MANAGEMENT DEVEL., INC. ("Metro") (collectively, "Defendants"). As such, I am fully
familiar with the facts and proceedings had herein based upon the examination of the file
maintained by this office.
1 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
2. This Affinnation is submitted in support of the instant Motion to Vacate the Note
of Issue and seeks an Order:
i. pursuant to 22 N.Y.C.R.R. 202.21(e) and 3126, vacating the Note
of Issue and Certificate of Readiness filed by the Plaintiff on May
26, 2022, and striking this action from the Court's Trial Calendar,
on the grounds that discovery remains outstanding, including but
not limited to vacation photographs and an examination by a
vocational rehabilitation expert;
ii. pursuant to CPLR § 3126, striking the Verified Complaint of the
Plaintiffs'
Plaintiffs, as against Defendants, for repeated failure to
comply with the April 7, 2022 Court Order directing Plaintiffs to
respond to outstanding discovery, including but not limited to the
photographs taken of Plaintiff Joseph Itara his two post-
during
accident Puerto Rico vacations; or, in the alternative;
iii. pursuant to CPLR § 3126 and Rule 3042, issuing a self-executing
conditional order precluding the plaintiff from offering any
testimony, medical evidence, or other evidence at the time of trial in
support of their claims if Plaintiffs fail to provide said discovery;
and
iv. for such other and further relief as this Court deems just and proper.
FACTS and PROCEDURAL HISTORY
3. This case involves an alleged fall on August 13, 2019, on the exterior stairs on the
roof of the premises located at 65 Columbia Street, New York, New York. Plaintiff JOSEPH
ITARA ("Plaintiff") claims that he was injured in that incident, and his wife, Plaintiff TABETHA
ITARA ("Tabetha"), asserts a loss of consortium claim.
4. On March 19, 2020, two days after the New York State Courts, and my office,
closed at the beginning of the COVID-19 Pandemic, Plaintiffs commenced this action against
"Verified"
Masaryk, via the filing of a Summons and Complaint, dated March 19, 2020, a copy of
"A."
which is annexed hereto collectively as Exhibit On or about August 7, 2020, Masaryk served
"B."
its Verified Answer and discovery demands, all of which are annexed hereto as Exhibit
2
2 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
"Verified"
5. On or about October 28, 2020, Plaintiffs served Defendant with a Bill
of Particulars, and on December 7, 2021, Plaintiffs served a Supplemental Verified Bill of
"C."
Particulars, a copy of which is attached are attached collectively as Exhibit As can be seen
from a cursory view of the Bills of Particulars, and from his deposition testimony referenced
accident."
below, Plaintiff Joseph Itara claims that he is "unable to return to work since the date of
6. Discovery proceeded, and on May 3, 2021.. a Preliminary Conference Order was
issued by the Court. A copy of the Preliminary Conference Order is annexed hereto as Exhibit
"D."
Shortly thereafter, on July 14, 2021, Defendant Masaryk commenced a third-party action
against Centennial Elevator Inc. ("Centennial"). Centennial moved to dismiss the third-
Industries,
party action, which motion was granted by this Court by Order dated December 6, 2021 and filed
on December 30, 2021.
7. On or about September 17, 2021, the parties stipulated that Plaintiffs may serve a
Supplemental Summons and Amended Complaint upon Metro Management & Development, Inc.
Defendants'
a/k/a Metro Management Devel., Inc. The Amended Complaint, and Answer, are
"E"
attached collectively hereto as Exhibit
8. The deposition of Plaintiff Joseph Itara was conducted on September 21, 2021. A
copy of the transcript of Plaintiff Joseph Itara's deposition is annexed hereto as Exhibit "F". At
his deposition, Plaintiff Joseph Itara testified that he had taken two vacations to Puerto Rico in the
summer of 2021, one with his wife from July 23 -30, 2021, and the other with his extended family
"F,"
from August 21 -31, 2021. Joseph Itara Dep., Exhibit pp. 164-165
9. The deposition of Plaintiff Tabetha Itara was conducted on September 27, 2021,
and a copy of her testimony is annexed hereto as Exhibit "G". During her deposition, Tabetha
confirmed that that Plaintiff Joseph Itara took a vacation to Puerto Rico with her in July, 2021, and
3
3 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
also vacationed in Puerto Rico with his extended family without her in August 2021. See Tabetha
"G," 72-
Itara Dep., Exhibit pp. 75. Moreover, at her deposition, Tabetha testified that not only
did she take photos of Joseph during their July 2021 vacation, but that she also saw photographs
"G,'
taken on Joseph's cell phone. Exhibit pp. 73-75.
10. On or about April 4, 2022, Defendants served Plaintiffs with a Post-Deposition
Notice for Discovery and Inspection, wherein they demanded copies of any photographs taken
during Plaintiff's vacations to Puerto Rico, as testified to by Plaintiff Tabetha Itara at her
deposition. A copy of the Post-Deposition Notice for Discovery and Inspection is annexed hereto
as Exhibit "H".
11. On April 6, 2022, a Status Conference was held, after which the Court issued an
Defendants'
Order dictating that Plaintiffs shall respond to Post Deposition Notice for Discovery
and Inspection dated April 4, 2022. A copy of the Status Conference Order, dated April 7, 2022,
is annexed as Exhibit "I".
12. On or about April 14, 2022, Plaintiffs served Defendants with a response to the
above-referenced Post-Deposition Notice for Discovery and Inspection, wherein they objected to
Defendants'
demand on the grounds that it sought information that was beyond the scope of
permittable discovery (i.e., all photographs taken during a vacation), but that regardless, Plaintiffs
Defendants'
did not take a vacation on the date noted in demand, which was based on Plaintiff
Plaintiffs' Defendants'
Tabetha Itara's testimony. A copy of Response to Post-Deposition Notice
for Discovery and Inspection is annexed hereto as Exhibit "J".
13. On or about May 24, 2022, and prior to the filing of the Note of Issue, Defendants
served Plaintiffs with a Supplemental Notice for Discovery and Inspection, correcting the date of
Plaintiff Joseph Itara's vacations based on additional testimony by Plaintiff Tabetha Itara (and
4
4 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
overlooking a discrepancy in the alleged dates of the vacation), demanding that Plaintiffs provide
copies of any and all photographs of Plaintiff Joseph Itara, or in which he appears, which were
taking during the trip to Puerto Rico on or about July 21, 2021 through July 31, 2021. A copy of
the Supplemental Notice for Discovery and Inspection is annexed hereto as Exhibit "K".
Defendants'
14. On or about May 26, 2022, Plaintiffs served a response to
Supplemental Post-Deposition Notice for Discovery and Inspection, wherein Plaintiffs
Defendants' "waived,"
erroneously claim that April 7, 2022 demand is and further object to the
demand seeking every photograph in which Plaintiff Joseph Itara appears as overly broad. A copy
Plaintiffs' "L."
of response is annexed as Exhibit On the same day (May 26, 2022), Plaintiffs
filed the Note of Issue and Certificate of Readiness for Trial, thereby certifying that all discovery
had been completed. A copy of Plaintiff's Note of Issue is annexed as Exhibit "M".
15. On May 27, 2022, Defendants sent a letter to counsel for the Plaintiffs, formally
Defendants'
rejecting their May 26, 2022 Response to Supplemental Post-Deposition Demands,
noting that Plaintiffs objected based, in part, on the fact that no photographs existed from that
vacation, as there appeared to be a discrepancy in the date of same. A copy of this correspondence
is annexed as Exhibit "N".
Defendants'
16. May 27, 2022 correspondence also notes that as the Court's Status
waived,"
Conference Order notes that "any discovery issues not raised herein will be deemed and
Defendants'
as the demand was clearly raised via April 4, 2022 demand, there was no waiver of
Plaintiffs' Defendants' Post-
this issue, contrary to May 27, 2022 Response to Supplemental
Deposition Demands.
Defendants'
17. In response to correspondence, Plaintiffs provided correspondence on
Defendants'
June 1, 2022, alleging that demand for the vacation photos in which Plaintiff Joseph
5
5 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
improper,"
Itara appears is a "fishing expedition, overly broad, and palpably citing the fact that
our office deposed both Plaintiffs but failed to elicit any information as to why every photograph
that contains any image of Plaintiff Joseph Itara is material or necessary, and cites several lower
court cases (all of which are easily distinguishable from this matter, and two of which are decisions
Plaintiffs'
by lower courts in the Second Department). A copy of June 1, 2022 correspondence is
"O."
annexed as Exhibit
Plaintiffs'
18. In response to correspondence, on June 9, 2022, this office provided
further correspondence, noting that Plaintiff Joseph Itara alleges that he sustained numerous
injuries to numerous body parts and underwent shoulder surgery on August 9, 2021, and claims he
can no longer work, yet was able to take two trips to Puerto Rico, both immediately before and
immediately after his surgery. This clearly bears on the credibility of Itara's claim that he sustained
serious injuries, can no longer perform his activities of daily living, and can no longer work. This
correspondence further notes that Plaintiff Tabetha Itara testified that she took photographs of her
husband during their July 2021 trip to Puerto Rico and has seen photographs from his August
2021I Defendants'
trip as well, which are on his cell phone. A copy of June 9, 2022 correspondence
is annexed hereto as Exhibit "P". This correspondence also clearly distinguishes the cases cited
by Plaintiffs from the current matter.
19. Plaintiffs followed with additional correspondence dated June 10, 2022,
Defendants'
mischaracterizing argument by stating that "the mere fact that someone took
information,"
photographs of the plaintiff is simply not a basis for discoverable and disingenuously
noting that Defendants fails to state why the sought after photographs are discoverable, despite
our argument that Plaintiff Joseph Itara took two vacations to Puerto Rico - both
citing directly
The year should read 2021, not 2019.
6
6 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
immediately before and immediately after his surgery, although he testified at his deposition that
he could not do anything for at least two weeks after his surgery, and continuing to date. A copy
Plaintiffs' "Q."
of June 10, 2022 correspondence is annexed hereto as Exhibit
"R"
20. An additional letter by Plaintiffs and e-mail cor.respondence followed (Exhibit
hereto), wherein Defendants distinguished the case cited by Plaintiffs with regard to the vocational
rehabilitation expert.
21. On June 14, 2022, the parties engaged in a video conference with Ms. Cangiano of
this Court, during which the parties attempted to resolve the issues surrounding production of the
photographs, and the vocational rehabilitation issue. After much discussion, and after a strong
suggestion that Plaintiff attempt to work out these issues with Defendant, Plaintiff's counsel flatly
refused, forcing Defendants to make this motion.
22. For the reasons set forth herein, this motion to vacate the Note of Issue should be
granted, and Plaintiffs should be directed to provide the photographs taken during Plaintiffs joint
vacation to Puerto Rico, and also the photographs taken during Joseph Itara's August 2021
vacation to Puerto Rico.
I.
PLAINTIFF'S NOTE OF ISSUE SHOULD BE VACATED
AS DISCOVERY REMAINS OUTSTANDING
23. Pursuant to 22 N.Y.C.R.R. § 202.21(e), Plaintiff's Note of Issue and Certificate of
Readiness should be vacated on the grounds that discovery is incomplete and this action is not
ready for trial.
24. 22 N.Y.C.R.R. § 202.21(e) provides in pertinent part:
Within twenty (20) days after service of a Note of Issue and
Certificate of Readiness, any party to the action or special
7
7 of 21
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022
proceeding may move to vacate the Note of Issue, upon
affidavits showing in what respects the case is not ready for
trial, and the Court may vacate the Note of ]ssue if it appears
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.
25. New York law is well settled that, in cases where a plaintiff has not complied with
all outstanding discovery obligations, as in this case, the vacatur of the Note of Issue and striking
of the action from the Trial Calendar is an appropriate remedy. See, 22 N.Y.C.R.R. § 202.21(e);
Matos v. City of New York, 154 A.D.3d 532, 63 N.Y.S.3d 324 (1st Dept. 2017); Nielsen v. New
York State Dormitory Auth., 84 A.D.3d 519, 520, 923 N.Y.S.2d 66 (1st Dept. 2011); Gomes v.
Valentine Realty LLC, 32 A.D.3d 699, 700, 822 N.Y.S.2d 2 (1st Dept. 200
Preview
FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------..-X JOSEPH ITARA and TABETHA ITARA, Index No.: 152948/2020 Plaintiffs, AFFIRMATION -against- IN SUPPORT OF DEFENDANTS' MASARYK TOWERS CORPORATION d/b/a MOTION TO VACATE MASARYK TOWERS MANAGEMENT, and THE NOTE OF ISSUE METRO MANAGEMENT & DEVELOPMENT INC., a/k/a METRO MANAGEMENT DEVEL., INC., Return Date: July 21, 2022 Defendant. -----------------------------------------------------------X Judge: Hon. W. Franc Perry MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS Index No. Third-Party MANAGEMENT, 595639/2021 Third-Party Plaintiff, - against - CENTENNIAL ELEVATOR INDUSTRIES, INC., Third-Party Defendant. -----------------------------------------------------------Ç SUSAN J. STROMBERG, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalty of perjury: 1. I am a partner with the law firm of Milber Makris Plousadis & Seiden LLP, attorneys for Defendants/Third-Party Plaintiffs MASARYK TOWFRS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT ("Masaryk") and METRO MANAGEMENT & DEVELOPMENT INC. a/k/a METRO MANAGEMENT DEVEL., INC. ("Metro") (collectively, "Defendants"). As such, I am fully familiar with the facts and proceedings had herein based upon the examination of the file maintained by this office. 1 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 2. This Affinnation is submitted in support of the instant Motion to Vacate the Note of Issue and seeks an Order: i. pursuant to 22 N.Y.C.R.R. 202.21(e) and 3126, vacating the Note of Issue and Certificate of Readiness filed by the Plaintiff on May 26, 2022, and striking this action from the Court's Trial Calendar, on the grounds that discovery remains outstanding, including but not limited to vacation photographs and an examination by a vocational rehabilitation expert; ii. pursuant to CPLR § 3126, striking the Verified Complaint of the Plaintiffs' Plaintiffs, as against Defendants, for repeated failure to comply with the April 7, 2022 Court Order directing Plaintiffs to respond to outstanding discovery, including but not limited to the photographs taken of Plaintiff Joseph Itara his two post- during accident Puerto Rico vacations; or, in the alternative; iii. pursuant to CPLR § 3126 and Rule 3042, issuing a self-executing conditional order precluding the plaintiff from offering any testimony, medical evidence, or other evidence at the time of trial in support of their claims if Plaintiffs fail to provide said discovery; and iv. for such other and further relief as this Court deems just and proper. FACTS and PROCEDURAL HISTORY 3. This case involves an alleged fall on August 13, 2019, on the exterior stairs on the roof of the premises located at 65 Columbia Street, New York, New York. Plaintiff JOSEPH ITARA ("Plaintiff") claims that he was injured in that incident, and his wife, Plaintiff TABETHA ITARA ("Tabetha"), asserts a loss of consortium claim. 4. On March 19, 2020, two days after the New York State Courts, and my office, closed at the beginning of the COVID-19 Pandemic, Plaintiffs commenced this action against "Verified" Masaryk, via the filing of a Summons and Complaint, dated March 19, 2020, a copy of "A." which is annexed hereto collectively as Exhibit On or about August 7, 2020, Masaryk served "B." its Verified Answer and discovery demands, all of which are annexed hereto as Exhibit 2 2 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 "Verified" 5. On or about October 28, 2020, Plaintiffs served Defendant with a Bill of Particulars, and on December 7, 2021, Plaintiffs served a Supplemental Verified Bill of "C." Particulars, a copy of which is attached are attached collectively as Exhibit As can be seen from a cursory view of the Bills of Particulars, and from his deposition testimony referenced accident." below, Plaintiff Joseph Itara claims that he is "unable to return to work since the date of 6. Discovery proceeded, and on May 3, 2021.. a Preliminary Conference Order was issued by the Court. A copy of the Preliminary Conference Order is annexed hereto as Exhibit "D." Shortly thereafter, on July 14, 2021, Defendant Masaryk commenced a third-party action against Centennial Elevator Inc. ("Centennial"). Centennial moved to dismiss the third- Industries, party action, which motion was granted by this Court by Order dated December 6, 2021 and filed on December 30, 2021. 7. On or about September 17, 2021, the parties stipulated that Plaintiffs may serve a Supplemental Summons and Amended Complaint upon Metro Management & Development, Inc. Defendants' a/k/a Metro Management Devel., Inc. The Amended Complaint, and Answer, are "E" attached collectively hereto as Exhibit 8. The deposition of Plaintiff Joseph Itara was conducted on September 21, 2021. A copy of the transcript of Plaintiff Joseph Itara's deposition is annexed hereto as Exhibit "F". At his deposition, Plaintiff Joseph Itara testified that he had taken two vacations to Puerto Rico in the summer of 2021, one with his wife from July 23 -30, 2021, and the other with his extended family "F," from August 21 -31, 2021. Joseph Itara Dep., Exhibit pp. 164-165 9. The deposition of Plaintiff Tabetha Itara was conducted on September 27, 2021, and a copy of her testimony is annexed hereto as Exhibit "G". During her deposition, Tabetha confirmed that that Plaintiff Joseph Itara took a vacation to Puerto Rico with her in July, 2021, and 3 3 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 also vacationed in Puerto Rico with his extended family without her in August 2021. See Tabetha "G," 72- Itara Dep., Exhibit pp. 75. Moreover, at her deposition, Tabetha testified that not only did she take photos of Joseph during their July 2021 vacation, but that she also saw photographs "G,' taken on Joseph's cell phone. Exhibit pp. 73-75. 10. On or about April 4, 2022, Defendants served Plaintiffs with a Post-Deposition Notice for Discovery and Inspection, wherein they demanded copies of any photographs taken during Plaintiff's vacations to Puerto Rico, as testified to by Plaintiff Tabetha Itara at her deposition. A copy of the Post-Deposition Notice for Discovery and Inspection is annexed hereto as Exhibit "H". 11. On April 6, 2022, a Status Conference was held, after which the Court issued an Defendants' Order dictating that Plaintiffs shall respond to Post Deposition Notice for Discovery and Inspection dated April 4, 2022. A copy of the Status Conference Order, dated April 7, 2022, is annexed as Exhibit "I". 12. On or about April 14, 2022, Plaintiffs served Defendants with a response to the above-referenced Post-Deposition Notice for Discovery and Inspection, wherein they objected to Defendants' demand on the grounds that it sought information that was beyond the scope of permittable discovery (i.e., all photographs taken during a vacation), but that regardless, Plaintiffs Defendants' did not take a vacation on the date noted in demand, which was based on Plaintiff Plaintiffs' Defendants' Tabetha Itara's testimony. A copy of Response to Post-Deposition Notice for Discovery and Inspection is annexed hereto as Exhibit "J". 13. On or about May 24, 2022, and prior to the filing of the Note of Issue, Defendants served Plaintiffs with a Supplemental Notice for Discovery and Inspection, correcting the date of Plaintiff Joseph Itara's vacations based on additional testimony by Plaintiff Tabetha Itara (and 4 4 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 overlooking a discrepancy in the alleged dates of the vacation), demanding that Plaintiffs provide copies of any and all photographs of Plaintiff Joseph Itara, or in which he appears, which were taking during the trip to Puerto Rico on or about July 21, 2021 through July 31, 2021. A copy of the Supplemental Notice for Discovery and Inspection is annexed hereto as Exhibit "K". Defendants' 14. On or about May 26, 2022, Plaintiffs served a response to Supplemental Post-Deposition Notice for Discovery and Inspection, wherein Plaintiffs Defendants' "waived," erroneously claim that April 7, 2022 demand is and further object to the demand seeking every photograph in which Plaintiff Joseph Itara appears as overly broad. A copy Plaintiffs' "L." of response is annexed as Exhibit On the same day (May 26, 2022), Plaintiffs filed the Note of Issue and Certificate of Readiness for Trial, thereby certifying that all discovery had been completed. A copy of Plaintiff's Note of Issue is annexed as Exhibit "M". 15. On May 27, 2022, Defendants sent a letter to counsel for the Plaintiffs, formally Defendants' rejecting their May 26, 2022 Response to Supplemental Post-Deposition Demands, noting that Plaintiffs objected based, in part, on the fact that no photographs existed from that vacation, as there appeared to be a discrepancy in the date of same. A copy of this correspondence is annexed as Exhibit "N". Defendants' 16. May 27, 2022 correspondence also notes that as the Court's Status waived," Conference Order notes that "any discovery issues not raised herein will be deemed and Defendants' as the demand was clearly raised via April 4, 2022 demand, there was no waiver of Plaintiffs' Defendants' Post- this issue, contrary to May 27, 2022 Response to Supplemental Deposition Demands. Defendants' 17. In response to correspondence, Plaintiffs provided correspondence on Defendants' June 1, 2022, alleging that demand for the vacation photos in which Plaintiff Joseph 5 5 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 improper," Itara appears is a "fishing expedition, overly broad, and palpably citing the fact that our office deposed both Plaintiffs but failed to elicit any information as to why every photograph that contains any image of Plaintiff Joseph Itara is material or necessary, and cites several lower court cases (all of which are easily distinguishable from this matter, and two of which are decisions Plaintiffs' by lower courts in the Second Department). A copy of June 1, 2022 correspondence is "O." annexed as Exhibit Plaintiffs' 18. In response to correspondence, on June 9, 2022, this office provided further correspondence, noting that Plaintiff Joseph Itara alleges that he sustained numerous injuries to numerous body parts and underwent shoulder surgery on August 9, 2021, and claims he can no longer work, yet was able to take two trips to Puerto Rico, both immediately before and immediately after his surgery. This clearly bears on the credibility of Itara's claim that he sustained serious injuries, can no longer perform his activities of daily living, and can no longer work. This correspondence further notes that Plaintiff Tabetha Itara testified that she took photographs of her husband during their July 2021 trip to Puerto Rico and has seen photographs from his August 2021I Defendants' trip as well, which are on his cell phone. A copy of June 9, 2022 correspondence is annexed hereto as Exhibit "P". This correspondence also clearly distinguishes the cases cited by Plaintiffs from the current matter. 19. Plaintiffs followed with additional correspondence dated June 10, 2022, Defendants' mischaracterizing argument by stating that "the mere fact that someone took information," photographs of the plaintiff is simply not a basis for discoverable and disingenuously noting that Defendants fails to state why the sought after photographs are discoverable, despite our argument that Plaintiff Joseph Itara took two vacations to Puerto Rico - both citing directly The year should read 2021, not 2019. 6 6 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 immediately before and immediately after his surgery, although he testified at his deposition that he could not do anything for at least two weeks after his surgery, and continuing to date. A copy Plaintiffs' "Q." of June 10, 2022 correspondence is annexed hereto as Exhibit "R" 20. An additional letter by Plaintiffs and e-mail cor.respondence followed (Exhibit hereto), wherein Defendants distinguished the case cited by Plaintiffs with regard to the vocational rehabilitation expert. 21. On June 14, 2022, the parties engaged in a video conference with Ms. Cangiano of this Court, during which the parties attempted to resolve the issues surrounding production of the photographs, and the vocational rehabilitation issue. After much discussion, and after a strong suggestion that Plaintiff attempt to work out these issues with Defendant, Plaintiff's counsel flatly refused, forcing Defendants to make this motion. 22. For the reasons set forth herein, this motion to vacate the Note of Issue should be granted, and Plaintiffs should be directed to provide the photographs taken during Plaintiffs joint vacation to Puerto Rico, and also the photographs taken during Joseph Itara's August 2021 vacation to Puerto Rico. I. PLAINTIFF'S NOTE OF ISSUE SHOULD BE VACATED AS DISCOVERY REMAINS OUTSTANDING 23. Pursuant to 22 N.Y.C.R.R. § 202.21(e), Plaintiff's Note of Issue and Certificate of Readiness should be vacated on the grounds that discovery is incomplete and this action is not ready for trial. 24. 22 N.Y.C.R.R. § 202.21(e) provides in pertinent part: Within twenty (20) days after service of a Note of Issue and Certificate of Readiness, any party to the action or special 7 7 of 21 FILED: NEW YORK COUNTY CLERK 06/15/2022 06:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/15/2022 proceeding may move to vacate the Note of Issue, upon affidavits showing in what respects the case is not ready for trial, and the Court may vacate the Note of ]ssue if it appears 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. 25. New York law is well settled that, in cases where a plaintiff has not complied with all outstanding discovery obligations, as in this case, the vacatur of the Note of Issue and striking of the action from the Trial Calendar is an appropriate remedy. See, 22 N.Y.C.R.R. § 202.21(e); Matos v. City of New York, 154 A.D.3d 532, 63 N.Y.S.3d 324 (1st Dept. 2017); Nielsen v. New York State Dormitory Auth., 84 A.D.3d 519, 520, 923 N.Y.S.2d 66 (1st Dept. 2011); Gomes v. Valentine Realty LLC, 32 A.D.3d 699, 700, 822 N.Y.S.2d 2 (1st Dept. 200