Preview
FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------------------------------------------------------------X X
MICHAEL MESSINA,
Index #604204/14
Plaintiff(s),
-against- AFFIRMATION IN
SUPPORT
MORTON VILLAGE REALTY INC. and PHILLIPS
INTERNATIONAL REALTY INC.,
Defendants.
----------------------------------------------------------------------X X
MORTON VILLAGE REALTY INC. and PHILLIPS
INTERNATIONAL REALTY INC.,
Third-Party Plaintiffs,
-against-
MR. JOE'S PIZZERIA & RESTORANTE, RUAGO, LLC
d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE
FRANZELLA, JOSEPH LOGLISCI, MICHAEL
RUGGIERO, DIG ENTERPRISE, INC. and PETE
LAMARIANA,
Third-Party Defendants.
â€â€â€â€â€â€â€â€â€â€â€â€ ——————X
-------------------------------------------------------------------------X
ROBERT M. CONBOY, an attorney duly admitted to practice law in the Courts
of the State of New York, hereby affirms the truth of the following under the penalties of
perjury:
1. I am an associate of McANDREW, CONBOY 4 PRISCO, attorneys for the
defendants, MORTON VILLAGE REALTY INC. and PHILLIPS
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INTERNATIONAL REALTY INC., (hereinafter referred to as MORTON and PHILLIPS.
2. I am fully familiar with the facts and circumstances herein contained, the
source of my knowledge and information being the records maintained by this office
during the course of the defense hereof.
3. This affirmation is submitted in support of the within motion for an Order
pursuant to CPLR 22 N.Y.C.R.R. §202.21(e) vacating the Note of Issue and Certificate of
Readiness on the grounds that all discovery is not complete, including, but not limited to a
deposition of non-party witness Michael Messina, authorizations for all treating doctors,
income tax records, worker's compensation records, collateral source providers,
providing responses to various Post Deposition Demands, as well as a further
examination before trial and independent medical examination of the plaintiff, or
alternatively, allowing discovery to be completed while the case remains on the trial
defendants'
calendar, and extending the time within which to move for summary
judgment, together with such other and further relief as the Court deems just and proper.
4. This is an action for personal injuries allegedly sustained by the plaintiff on
January 9, 2014. It is alleged that plaintiff slipped and fell on ice outside the premises
known as 1048 Old Country Road, Plainview, New York.
5. The instant action was commenced by the filing of a Summons and Verified
Complaint on or about August 13, 2014. (Summons and Verified Complaint annexed
hereto as Exhibit "A"). Issue was thereafter joined by the defendant, MORTON and
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PHILLIPS by prior counsel on or about November 20, 2014. (Said Amended Verified
Answer is annexed hereto as Exhibit "B").
6. Prior counsel brought a Third-Party Action against MR. JOE'S PIZZERIA
& RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC.,
GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG
ENTERPRISE, INC. and PETE LAMARIANA on June 4, 2015. (Annexed hereto as
"C"
Exhibit is the Third-Party Summons and Complaint). Armienti, DeBellis,
Guglielmo and Rhoden, LLP interposed their third-party answer for RUAGO, LLC
D/B/A MR. JOE'S AND MICHAEL RUGGERIO, I/S/H/A RUAGO, LLC, d/b/a PIZZA
DELIGHT INC., MR. JOE'S PIZZERIA & RISTORANTE (hereinafter referred to as
RUAGO) on June 30, 2015. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &,
Fishlinger interposed their third party answer on behalf of DIG ENTERPRISE, INC. and
PETE LAMARIANA (hereinafter referred to as DIG) on July 28, 2015. (The Third-Party
Answers of RUAGO and DIG are annexed hereto as Exhibit "D"). Your affirmant's
office was subsequently substituted as counsel for defendant MORTON and PHILLIPS in
the action. (Notice of Substitution annexed hereto as Exhibit "E").
7. On February 16, 2018, all parties appeared at a Certification Conference
with the Honorable Judge Peck. A stipulation was entered wherein the discovery
remaining was outlined (Stipulation dated February 16, 2018 annexed hereto as Exhibit
"F"). The stipulation, which was entered by Judge Peck, specifically states that "Plaintiff
complete."
shall not file the Note of Issue until above discovery is One of the remaining
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items of discovery that is included in that stipulation, is the further Independent Medical
ExaminationofthePlaintiff.
"'4
8. On April 18, 2018, plaintiff filed a Note of Issue and Certificate of
Readiness placing this matter on the Trial Calendar. (Note of Issite and Certificate of
Readiness annexed hereto as Exhibit "G"). Clearly all discovery in this matter is not
complete as the Independent Medical Examination of the Plaintiff was never held.
Plaintifferroneously provides in his Certificate of Readiness thatPhysical examinations
have been completed.
9. On April 13, 2018, a further EBT of plaintiff was held regarding
psychological claims that were alleged in plaintiffs Second Supplemental Bill of
Particulars. Defendants wish to have a neuro-psychological Independent Medical
Examination performed after obtaining all of plaintiff's medical records related to said
treatment.
10. Further, defendants are still owed numerous authorizations for plaintiffs
"H"
medical records. Attached hereto as Exhibit are the PostDeposition Demands made
by all defendants for records not previously supplied. It is imperative that the defendants
be allowed theopportunity to obtain all of plaintiff's medical records for the examining
physician to have in their possession for the Independent Medical Examination of the
plaintiff.
11. Additionally, the defendants wish to take the deposition of non-party
withess, Michael Messina, who was with the Plaintiff at the time of his'alleged accident.
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12. As such, it is respectfully submitted that the Note of Issue and Certificate of
Readiness should be vacated at this time and the plaintiff ordered to file same once
discovery is completed.
ARGUMENT
II. PURSUANT TO 22 NYCRR § 202.21(E), THE NOTE OF ISSUE MUST BE
VACATED BECAUSE THE OUTSTANDING DISCOVERY RENDERS
THE CASE NOT READY FOR TRIAL
22 NYCRR § 202.21(e) provides, in relevant part:
Vacating note of issue. 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 of issue, upon affidavit showing
in what respects the case is not ready for trial, and the court
may vacate the note of issue if it appears that a material fact
in the certificate of readiness is incorrect.
13. At any time, the court on its own motion may vacate a note of issue if it
appears that a material fact in the certificate of readiness is incorrect, such as if the
certificate incorrectly states that all discovery has been completed. Nielsen v New York
State Dormitory Auth., 84 A.D.3d 519 (1st Dept. 2011) ("A note of issue should be
vacated where. as here, it is based upon a certificate of readiness that incorrectly states
that all discovery has been completed."): Ortiz v. Arias, 285 A.D.2d 390, 39 (1st Dept.
("
2001) ("We have repeatedly held that a note of issue should be vacated when itis based
facts."
upon a certificate of readiness that contains erroneous including an incorrect
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statement that all physical examinations and other discovery have been completed or
waived.").
14. In light of the above, it is respectfully submitted that an Order should be
ol'
issued vacating the Note of Issue and Certificate oi Readiness and allowing for the
aforementioned IME of plaintiff to take place. In addition, plaintiff owes authorizations
for medical records to be supplied. Said authorizations are required for the further
Independent Medical Examination of the plaintiff to be held. Additionally, the deposition
of the non-party witness is stilloutstanding and his testimony is required and necessary to
be able to properly defend this matter. Furthermore, in the event that the Court denies
ol'
the request to strike the Note of Issue and allows the case to remain on the trial calendar
defendants'
while the discovery is conducted, it is respectfully requested that time in
which to move for summary judgment be extended to 120 days after the completion of
discovery.
15. Plaintiff has not responded to our Demand for Authorizations after filing
ol'
the Note of Issue. Included in the authorizations requested were treating doctors,
radiologists, drug stores, worker's compensation carrier and Social security disability
records. It will be necessary to obtain all the records at which time a further independent
medical examination will be needed. Clearly this action is not ready for trial and the Note
of Issue must be vacated.
16. Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to
practice in the Courts of the State of New York, certifies that, upon information and
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belief, and after reasonable inquiry, the contentions contained in the annexed document(s)
are not frivolous.
WHEREFORE. itis respectfully requested that the Court issue an Order pursuant
to CPLR 22 N.Y.C.R.R. §202.21(e) vacating the Note of Issue and Certificate of
Readiness on the grounds that all discovery is not complete, an Order compelling the
plaintiff to with but not limited the Neuro-
comply outstanding discovery including, to,
Psychological IME of the plaintiff, or in the alternative, an Order extending the
defendants'
time within which to move for summary judgment, together with such other
and further relief as the Court deems just and proper.
Dated: Melville, New York
April 30, 2018
RÓBERT M. BOY, ESQ.
10
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Preview
FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------------------------------------X X MICHAEL MESSINA, Index #604204/14 Plaintiff(s), -against- AFFIRMATION IN SUPPORT MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC., Defendants. ----------------------------------------------------------------------X X MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC., Third-Party Plaintiffs, -against- MR. JOE'S PIZZERIA & RESTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC. and PETE LAMARIANA, Third-Party Defendants. â€â€â€â€â€â€â€â€â€â€â€â€ ——————X -------------------------------------------------------------------------X ROBERT M. CONBOY, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. I am an associate of McANDREW, CONBOY 4 PRISCO, attorneys for the defendants, MORTON VILLAGE REALTY INC. and PHILLIPS 1 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 INTERNATIONAL REALTY INC., (hereinafter referred to as MORTON and PHILLIPS. 2. I am fully familiar with the facts and circumstances herein contained, the source of my knowledge and information being the records maintained by this office during the course of the defense hereof. 3. This affirmation is submitted in support of the within motion for an Order pursuant to CPLR 22 N.Y.C.R.R. §202.21(e) vacating the Note of Issue and Certificate of Readiness on the grounds that all discovery is not complete, including, but not limited to a deposition of non-party witness Michael Messina, authorizations for all treating doctors, income tax records, worker's compensation records, collateral source providers, providing responses to various Post Deposition Demands, as well as a further examination before trial and independent medical examination of the plaintiff, or alternatively, allowing discovery to be completed while the case remains on the trial defendants' calendar, and extending the time within which to move for summary judgment, together with such other and further relief as the Court deems just and proper. 4. This is an action for personal injuries allegedly sustained by the plaintiff on January 9, 2014. It is alleged that plaintiff slipped and fell on ice outside the premises known as 1048 Old Country Road, Plainview, New York. 5. The instant action was commenced by the filing of a Summons and Verified Complaint on or about August 13, 2014. (Summons and Verified Complaint annexed hereto as Exhibit "A"). Issue was thereafter joined by the defendant, MORTON and 5 2 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 PHILLIPS by prior counsel on or about November 20, 2014. (Said Amended Verified Answer is annexed hereto as Exhibit "B"). 6. Prior counsel brought a Third-Party Action against MR. JOE'S PIZZERIA & RISTORANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GIUSEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC. and PETE LAMARIANA on June 4, 2015. (Annexed hereto as "C" Exhibit is the Third-Party Summons and Complaint). Armienti, DeBellis, Guglielmo and Rhoden, LLP interposed their third-party answer for RUAGO, LLC D/B/A MR. JOE'S AND MICHAEL RUGGERIO, I/S/H/A RUAGO, LLC, d/b/a PIZZA DELIGHT INC., MR. JOE'S PIZZERIA & RISTORANTE (hereinafter referred to as RUAGO) on June 30, 2015. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &, Fishlinger interposed their third party answer on behalf of DIG ENTERPRISE, INC. and PETE LAMARIANA (hereinafter referred to as DIG) on July 28, 2015. (The Third-Party Answers of RUAGO and DIG are annexed hereto as Exhibit "D"). Your affirmant's office was subsequently substituted as counsel for defendant MORTON and PHILLIPS in the action. (Notice of Substitution annexed hereto as Exhibit "E"). 7. On February 16, 2018, all parties appeared at a Certification Conference with the Honorable Judge Peck. A stipulation was entered wherein the discovery remaining was outlined (Stipulation dated February 16, 2018 annexed hereto as Exhibit "F"). The stipulation, which was entered by Judge Peck, specifically states that "Plaintiff complete." shall not file the Note of Issue until above discovery is One of the remaining 6 3 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 items of discovery that is included in that stipulation, is the further Independent Medical ExaminationofthePlaintiff. "'4 8. On April 18, 2018, plaintiff filed a Note of Issue and Certificate of Readiness placing this matter on the Trial Calendar. (Note of Issite and Certificate of Readiness annexed hereto as Exhibit "G"). Clearly all discovery in this matter is not complete as the Independent Medical Examination of the Plaintiff was never held. Plaintifferroneously provides in his Certificate of Readiness thatPhysical examinations have been completed. 9. On April 13, 2018, a further EBT of plaintiff was held regarding psychological claims that were alleged in plaintiffs Second Supplemental Bill of Particulars. Defendants wish to have a neuro-psychological Independent Medical Examination performed after obtaining all of plaintiff's medical records related to said treatment. 10. Further, defendants are still owed numerous authorizations for plaintiffs "H" medical records. Attached hereto as Exhibit are the PostDeposition Demands made by all defendants for records not previously supplied. It is imperative that the defendants be allowed theopportunity to obtain all of plaintiff's medical records for the examining physician to have in their possession for the Independent Medical Examination of the plaintiff. 11. Additionally, the defendants wish to take the deposition of non-party withess, Michael Messina, who was with the Plaintiff at the time of his'alleged accident. 7 4 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 12. As such, it is respectfully submitted that the Note of Issue and Certificate of Readiness should be vacated at this time and the plaintiff ordered to file same once discovery is completed. ARGUMENT II. PURSUANT TO 22 NYCRR § 202.21(E), THE NOTE OF ISSUE MUST BE VACATED BECAUSE THE OUTSTANDING DISCOVERY RENDERS THE CASE NOT READY FOR TRIAL 22 NYCRR § 202.21(e) provides, in relevant part: Vacating note of issue. 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 of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect. 13. At any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect, such as if the certificate incorrectly states that all discovery has been completed. Nielsen v New York State Dormitory Auth., 84 A.D.3d 519 (1st Dept. 2011) ("A note of issue should be vacated where. as here, it is based upon a certificate of readiness that incorrectly states that all discovery has been completed."): Ortiz v. Arias, 285 A.D.2d 390, 39 (1st Dept. (" 2001) ("We have repeatedly held that a note of issue should be vacated when itis based facts." upon a certificate of readiness that contains erroneous including an incorrect 8 5 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 statement that all physical examinations and other discovery have been completed or waived."). 14. In light of the above, it is respectfully submitted that an Order should be ol' issued vacating the Note of Issue and Certificate oi Readiness and allowing for the aforementioned IME of plaintiff to take place. In addition, plaintiff owes authorizations for medical records to be supplied. Said authorizations are required for the further Independent Medical Examination of the plaintiff to be held. Additionally, the deposition of the non-party witness is stilloutstanding and his testimony is required and necessary to be able to properly defend this matter. Furthermore, in the event that the Court denies ol' the request to strike the Note of Issue and allows the case to remain on the trial calendar defendants' while the discovery is conducted, it is respectfully requested that time in which to move for summary judgment be extended to 120 days after the completion of discovery. 15. Plaintiff has not responded to our Demand for Authorizations after filing ol' the Note of Issue. Included in the authorizations requested were treating doctors, radiologists, drug stores, worker's compensation carrier and Social security disability records. It will be necessary to obtain all the records at which time a further independent medical examination will be needed. Clearly this action is not ready for trial and the Note of Issue must be vacated. 16. Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the Courts of the State of New York, certifies that, upon information and 9 6 of 7 FILED: NASSAU COUNTY CLERK 05/04/2018 11:58 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/04/2018 belief, and after reasonable inquiry, the contentions contained in the annexed document(s) are not frivolous. WHEREFORE. itis respectfully requested that the Court issue an Order pursuant to CPLR 22 N.Y.C.R.R. §202.21(e) vacating the Note of Issue and Certificate of Readiness on the grounds that all discovery is not complete, an Order compelling the plaintiff to with but not limited the Neuro- comply outstanding discovery including, to, Psychological IME of the plaintiff, or in the alternative, an Order extending the defendants' time within which to move for summary judgment, together with such other and further relief as the Court deems just and proper. Dated: Melville, New York April 30, 2018 RÓBERT M. BOY, ESQ. 10 7 of 7