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FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E
NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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ROSY MEDRANO and ELSA ARAUJO aka ELSA Index No.: 20901/2015E
ROBLES,
Plaintiff AFFIRMATION
-against- IN SUPPORT
JUAN C. ROMAN LEBREAULT and JOHN MOHAN,
Defendants.
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JUAN C. ROMAN LEBREAULT,
Second Third-Party Plaintiff
-against-
HHH HOME CARE, INC.,
Second Third-Party Defendant.
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MICHAEL S. GREENFIELD, ESQ., an attorney duly licensed to practice law in the State of
New York, affirms the following to be trueunder the penalties of perjury and CPLR §2106:
1. That I am associated with LEWIS BRISBOIS BISGAARD & SMITH, LLP,
attorneys for Second Third-Party Defendant HHH HOME CARE, INC. (hereinafter "HHH"), and
as such I am familiar with the facts and circumstances surrounding this cross-motion.
2. This affirmation is subscribed upon information and belief, the sources of which are
the files and records maintained by LEWIS BRISBOIS BISGAARD & SMITH, LLP for this action.
3. This affirmation is submitted in support of Second Third-Party Defendant HHH's
cross-motion for an Order:
a. Vacating the Plaintiff's Note of Issue and Certificate of Trial
Readiness, pursuant to Rule 3401 of the Civil Practice Law and Rules
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("CPLR") and the Uniform Rules for Trial Courts §202.21(e), on the
grounds that discovery is incomplete as deposition(s) and paper
discovery remain outstanding;
b. Staying this matter until alldiscovery is complete pursuant to CPLR
§2201;
defendants'
c. Extending time to file a Motion for Summary Judgment
until 120 days following the completion of alldiscovery pursuant to
CPLR §§2004 and 3212; and
d. Granting such other and further relief as to this Court may deem just
and proper.
RELEVANT HISTORY
4. This is a personal injury case in which Plaintiffs ROSY MEDRANO and ELSA
ARAUJO a/k/a ELSA ROBLES seek compensatory damages arising out of a motor vehicle accident
on April 24, 2014.
5. Plaintiffs commenced this action on February 16, 2015 by filing a Summons and
Verified Complaint (the Verified Complaint is annexed hereto as Exhibit "A").
6. On or about March 26, 2015, defendant JOHN MOHAN interposed an Answer with
Cross-Claims (Exhibit "B").
Plaintiffs'
7. On or about April 20, 2015, Mr. LEBRAULT served a Verified Answer to
Complaint, which also asserted a counterclaim against Ms. MEDRANO (Mr. Lebrault's Verified
Answer to the Complaint with Cross-Claim and Counterclaim is annexed as Exhibit "C").
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8. On or about August 18, 2016, Mr. LEBRAULT filed a Second Third-Party action
against HHH (a copy of Mr. Lebrault's Third-Party pleading against HHH is annexed as Exhibit
D).1
9. On HHH served a Verified Answer to Mr. LEBRAULT's Third-
January 16, 2017,
Party Complaint (a copy of which is annexed as Exhibit "E").
10. On Deceniber 3, 2018, the Court resolved motions to strike various Answers (the
December 3, 2018 Order is annexed as Exhibit "F"). That Order directed the parties to take
depositions on March 15, 2019. It also directed the parties to appear for a Compliance Conference
on March 19, 2019.
1 1. On March 15, 2019, the deposition of defendant JUAN C. ROMAN LEBREAULT
was conducted. Second Defendant HHH has not had the to make post-
Third-Party opportunity
deposition demands. Additionally, HHH has not received the signature page and errata sheet for this
deposition.
12. Even though defendant JOHN MOHAN has not been deposed, Plaintiff filed the Note
of Issue on March 18, 2019 (the Note of Issue isannexed hereto as Exhibit "G"). The Certificate of
Readiness for Trial incorrectly states that "Discovery proceedings now know to be necessary
complete" discovery."
were completed and that "[t]here are no outstanding requests for
13. On March 19, 2019, an attorney from LEWIS BRISBOIS BISGAARD & SMITH,
LLP appeared for the Compliance Conference scheduled for that date. However, because the Court
1 The firstThird-Party CGiñplaiñt, against Premier Home Health Care Services, Inc.,was dismissed on June 28,
2018 aftermotion practice.
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did not have the conference scheduled and none of the other parties appeared, the conference was
adjourned until May 14, 2019.
14. As a result of the foregoing, Second-Third Party Defendant HHH now seeks Court
intervention.
15. This motion is timely as per 22 NYCRR §202.21(e).
ARGUMENT
16. It isclear that plaintiff prematurely filed the Note of Issue as discovery is still
being conducted. This case should not remain on the trial calendar as significant discovery is
outstanding and the time to submit dispositive motions is now running.
17. Uniform Rule 202.1 (e) permits the parties to move to vacate a Note of Issue and
Certificate of Readiness upon showing the case is not ready for trial.
18. Because pre-trial discovery is not completed, the filing of the Note of Issue is a
nullity, and defendant's motion to vacate the Note of Issue and Certificate of Readiness must be
properly granted. Brown v. Astoria Federal Sav., 51 A.D.3d 961 (2nd Dep't 2008). See also 22
NYCRR 202.21(e), Gregory v Ford Motor Credit Co., 298 A.D.2d 496, 497 (2nd Dep't 2002);
Drapaniotis v 36-08 33rd St. Corp., 288 A.D.2d 254 (2nd Dep't 2001); Macancela v Pekurar.
286 A.D.2d 320, 321 (2nd Dep't 2001).
19. It iswell settled that a Note of Issue must be vacated and stricken when, such as
here, itis based upon a Certificate of Readiness that contains erroneous facts. Savino v. Lewittes,
160 A.D.2d 176, 553 N.Y.S.2d 146 (1st Dep't 1990); see also Bassetti v. Nour, 731 NYS2d 35
(2nd
Dept. 2001). In Savino, plaintiff filed a Note of Issue and incorrectly stated that all discovery
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was complete. The Savino Court reversed the IAS Court's denial of defendant's motion to strike
the Note of Issue, holding that the note of issue should have been stricken since itwas based on
an erroneous Certificate of Readiness.
20. Besides the paper discovery mentioned above, the deposition of defendant JOHN
MOHAN has not to be held. There will most likely be post-deposition demands made in
connection with the deposition. This discovery is both relevant and essential and to which itis
entitled to in order to properly defend against Second Third-Party Plaintiff's claims.
21. Should the Court allow this matter to remain on the trialcalendar, then Second
Third-Party Defendant HHH requests the matter be stayed, pursuant to CPLR §2201, and the
time in which to file Motions for Summary Judgment be extended until one hundred and twenty
(120) days following the completion of all discovery, pursuant to CPLR §§2004 and 3212.
22. The parties will not be prejudiced if the Court strikes the Note of Issue to permit
the completion of the aforementioned necessary discovery. Should this Court deny the instant
motion, Second Third-Party Defendant HHH will be irreparably harmed as it will not have had a
fair opportunity to conduct all necessary discovery and adequately prepare a defense in this
matter and filetimely dispositive motions.
23. No prior application has been made for the relief sought within.
WHEREFORE, Second Third-Party Defendant HHH respectfully requests an Order Order
vacating the Plaintiff's Note of Issue and Certificate of Trial Readiness, staying this matter until all
defendants'
is complete, time to file a Motion for S-... . ry Judgment until 120
discovery extending
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days following the completion of all discovery, and granting such other, further,
as to this Court seems just and equitable.
Dated: New York, New York
April 26, 2019
AA
MI A S. REEN IELD, ESQ.
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FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------X ROSY MEDRANO and ELSA ARAUJO aka ELSA Index No.: 20901/2015E ROBLES, Plaintiff AFFIRMATION -against- IN SUPPORT JUAN C. ROMAN LEBREAULT and JOHN MOHAN, Defendants. ---------------------------------------------------------------------X JUAN C. ROMAN LEBREAULT, Second Third-Party Plaintiff -against- HHH HOME CARE, INC., Second Third-Party Defendant. ---------------------------------------------------------------------X MICHAEL S. GREENFIELD, ESQ., an attorney duly licensed to practice law in the State of New York, affirms the following to be trueunder the penalties of perjury and CPLR §2106: 1. That I am associated with LEWIS BRISBOIS BISGAARD & SMITH, LLP, attorneys for Second Third-Party Defendant HHH HOME CARE, INC. (hereinafter "HHH"), and as such I am familiar with the facts and circumstances surrounding this cross-motion. 2. This affirmation is subscribed upon information and belief, the sources of which are the files and records maintained by LEWIS BRISBOIS BISGAARD & SMITH, LLP for this action. 3. This affirmation is submitted in support of Second Third-Party Defendant HHH's cross-motion for an Order: a. Vacating the Plaintiff's Note of Issue and Certificate of Trial Readiness, pursuant to Rule 3401 of the Civil Practice Law and Rules 4852-2220-7381.1 6 1 of 6 FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 ("CPLR") and the Uniform Rules for Trial Courts §202.21(e), on the grounds that discovery is incomplete as deposition(s) and paper discovery remain outstanding; b. Staying this matter until alldiscovery is complete pursuant to CPLR §2201; defendants' c. Extending time to file a Motion for Summary Judgment until 120 days following the completion of alldiscovery pursuant to CPLR §§2004 and 3212; and d. Granting such other and further relief as to this Court may deem just and proper. RELEVANT HISTORY 4. This is a personal injury case in which Plaintiffs ROSY MEDRANO and ELSA ARAUJO a/k/a ELSA ROBLES seek compensatory damages arising out of a motor vehicle accident on April 24, 2014. 5. Plaintiffs commenced this action on February 16, 2015 by filing a Summons and Verified Complaint (the Verified Complaint is annexed hereto as Exhibit "A"). 6. On or about March 26, 2015, defendant JOHN MOHAN interposed an Answer with Cross-Claims (Exhibit "B"). Plaintiffs' 7. On or about April 20, 2015, Mr. LEBRAULT served a Verified Answer to Complaint, which also asserted a counterclaim against Ms. MEDRANO (Mr. Lebrault's Verified Answer to the Complaint with Cross-Claim and Counterclaim is annexed as Exhibit "C"). 4852-2220-7381.1 7 2 of 6 FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 8. On or about August 18, 2016, Mr. LEBRAULT filed a Second Third-Party action against HHH (a copy of Mr. Lebrault's Third-Party pleading against HHH is annexed as Exhibit D).1 9. On HHH served a Verified Answer to Mr. LEBRAULT's Third- January 16, 2017, Party Complaint (a copy of which is annexed as Exhibit "E"). 10. On Deceniber 3, 2018, the Court resolved motions to strike various Answers (the December 3, 2018 Order is annexed as Exhibit "F"). That Order directed the parties to take depositions on March 15, 2019. It also directed the parties to appear for a Compliance Conference on March 19, 2019. 1 1. On March 15, 2019, the deposition of defendant JUAN C. ROMAN LEBREAULT was conducted. Second Defendant HHH has not had the to make post- Third-Party opportunity deposition demands. Additionally, HHH has not received the signature page and errata sheet for this deposition. 12. Even though defendant JOHN MOHAN has not been deposed, Plaintiff filed the Note of Issue on March 18, 2019 (the Note of Issue isannexed hereto as Exhibit "G"). The Certificate of Readiness for Trial incorrectly states that "Discovery proceedings now know to be necessary complete" discovery." were completed and that "[t]here are no outstanding requests for 13. On March 19, 2019, an attorney from LEWIS BRISBOIS BISGAARD & SMITH, LLP appeared for the Compliance Conference scheduled for that date. However, because the Court 1 The firstThird-Party CGiñplaiñt, against Premier Home Health Care Services, Inc.,was dismissed on June 28, 2018 aftermotion practice. 4852-2220-7381,1 8 3 of 6 FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 did not have the conference scheduled and none of the other parties appeared, the conference was adjourned until May 14, 2019. 14. As a result of the foregoing, Second-Third Party Defendant HHH now seeks Court intervention. 15. This motion is timely as per 22 NYCRR §202.21(e). ARGUMENT 16. It isclear that plaintiff prematurely filed the Note of Issue as discovery is still being conducted. This case should not remain on the trial calendar as significant discovery is outstanding and the time to submit dispositive motions is now running. 17. Uniform Rule 202.1 (e) permits the parties to move to vacate a Note of Issue and Certificate of Readiness upon showing the case is not ready for trial. 18. Because pre-trial discovery is not completed, the filing of the Note of Issue is a nullity, and defendant's motion to vacate the Note of Issue and Certificate of Readiness must be properly granted. Brown v. Astoria Federal Sav., 51 A.D.3d 961 (2nd Dep't 2008). See also 22 NYCRR 202.21(e), Gregory v Ford Motor Credit Co., 298 A.D.2d 496, 497 (2nd Dep't 2002); Drapaniotis v 36-08 33rd St. Corp., 288 A.D.2d 254 (2nd Dep't 2001); Macancela v Pekurar. 286 A.D.2d 320, 321 (2nd Dep't 2001). 19. It iswell settled that a Note of Issue must be vacated and stricken when, such as here, itis based upon a Certificate of Readiness that contains erroneous facts. Savino v. Lewittes, 160 A.D.2d 176, 553 N.Y.S.2d 146 (1st Dep't 1990); see also Bassetti v. Nour, 731 NYS2d 35 (2nd Dept. 2001). In Savino, plaintiff filed a Note of Issue and incorrectly stated that all discovery 4852-2220-7381.1 9 4 of 6 FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 was complete. The Savino Court reversed the IAS Court's denial of defendant's motion to strike the Note of Issue, holding that the note of issue should have been stricken since itwas based on an erroneous Certificate of Readiness. 20. Besides the paper discovery mentioned above, the deposition of defendant JOHN MOHAN has not to be held. There will most likely be post-deposition demands made in connection with the deposition. This discovery is both relevant and essential and to which itis entitled to in order to properly defend against Second Third-Party Plaintiff's claims. 21. Should the Court allow this matter to remain on the trialcalendar, then Second Third-Party Defendant HHH requests the matter be stayed, pursuant to CPLR §2201, and the time in which to file Motions for Summary Judgment be extended until one hundred and twenty (120) days following the completion of all discovery, pursuant to CPLR §§2004 and 3212. 22. The parties will not be prejudiced if the Court strikes the Note of Issue to permit the completion of the aforementioned necessary discovery. Should this Court deny the instant motion, Second Third-Party Defendant HHH will be irreparably harmed as it will not have had a fair opportunity to conduct all necessary discovery and adequately prepare a defense in this matter and filetimely dispositive motions. 23. No prior application has been made for the relief sought within. WHEREFORE, Second Third-Party Defendant HHH respectfully requests an Order Order vacating the Plaintiff's Note of Issue and Certificate of Trial Readiness, staying this matter until all defendants' is complete, time to file a Motion for S-... . ry Judgment until 120 discovery extending 4852-2220-7381.1 10 5 of 6 FILED: BRONX COUNTY CLERK 04/29/2019 07:32 PM INDEX NO. 20901/2015E NYSCEF DOC. NO. 173 RECEIVED NYSCEF: 04/29/2019 days following the completion of all discovery, and granting such other, further, as to this Court seems just and equitable. Dated: New York, New York April 26, 2019 AA MI A S. REEN IELD, ESQ. 6 of 6