Motion-Secondary: Jason Graham v. Tmobile Usa, Inc.,, Elias Properties Flatbush,Llc,

On August 07, 2012 a Motion-Secondary was filed involving a dispute between Jason Graham, and Elias Properties Flatbush,Llc,, Tmobile Usa, Inc.,, for Tort in the District Court of Nassau County.

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INDEX NO. 600285/2013
FILED: NASSAU COUNTY CLERK 12730/2014 03:43 PM
NYSCEF DOC. NO. 61 RECEIVED NYSCEF 12/30/2014

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
ee
JASON GRAHAM,
Plaintiff, Index No. 600285/2013
-against-
ATTORNEY AFFIRMATION
T-MOBILE USA, INC., and IN OPPOSITION TO
ELIAS PROPERTIES FLATBUSH, LLC. DEFENDANT’S MOTION TO
VACATE NOI

Defendants.
ee

George T. Peters, Esq., an attorney duly licensed to practice law in the State of New

York, hereby affirms the following under the penalties for perjury.

1 I am an attorney with the Law Office of George T. Peters, PLLC, the attorney for the

Plaintiff, Jason Graham.

2 I am fully familiar with the facts and circumstances contained herein. The source of my

knowledge and information is the file maintained by this office.

3 This affirmation is submitted in opposition to Defendant, Elias Properties Flatbush,

LLC’s (“Defendant”) motion to vacate the Note of Issue (“NOI”), pursuant to 22 NYCRR §

202.21(e), compelling Plaintiff to provide all outstanding discovery, appear for an independent

medical examination (“IME”), appear for a deposition, extend defendant’s time to move for

summary judgment to 120 days after completion of all discovery in this matter, and for other and

further relief.

I. Defendant’s motion to vacate the note of issue was not made within the Court
required time period.

4 Elias’ motion was not made within the required time period and should be dismissed as a

matter of law.
5 22 NYCRR § 202.21(e) states that “Within 20 days after service of a note of issue and

certificate of readiness, any party to the action or special proceeding 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, or that the certificate of readiness fails to comply with the requirements of this section

in some material respect.”

6. In the instant matter, the note of issue was filed on November 12, 2014, as shown in

Defendant’s exhibit.

7 The Defendant’s motion to vacate the note of issue is dated December 5, 2014.

Defendant’s motion to vacate Plaintiff's NOI was filed twenty-three (23) days after Plaintiff's

NOI.

8 As such the Defendant’s motion to vacate the note of issue was not made within the

Court required time period.

9 Defendant has waived their right to vacate the NOI.

10. Defendant has also not offered any justifiable excuse for its failure to timely move nor

have they stated and/or demonstrated that any unusual and/or unanticipated circumstances exist

which would permit post note of issue discovery.

11. Pursuant to 22 NYCRR § 202.21 Defendant has waived their right to vacate the note of

issue and the Defendant’s motion should be denied as a matter of law. See Shroeder v. IESI NY

Corp. 24 AD3d 180 (2005), Colon v. Ren Yu Jin 45 AD3d 359 (2007) and Tirado v. Miller 75

AD3d 153 (2010).

12. It is within the Court’s discretion to deny a motion to vacate a NOI where defendant does

not show that the certificate of readiness contained an incorrect material fact. See Mateo v. City

2
of New York, 282 AD 2d (ist Dept. 2001). See also Mayo v. Lincoln Triangle Assos., Inc., 248

AD 2d 362 (2nd Dept. 1998) (Motion to vacate NOI denied when demand to take physical

examinations failed to take place within the time set forth in the preliminary conference order

and demand for examinations was not made until after NOI was filed).

13. Defendant fails to show 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.

14. Plaintiff has complied with all outstanding discovery demands in the above-entitled

matter. Therefore, the NOI was properly filed and should not be vacated.

15. It is noteworthy that nowhere in either the Affirmation in Support or the Memorandum of

law does Elias state that Defendant requested Graham appear for either a deposition or an IME.

Nor have Defendant’s appended a notice to take a deposition or notice for an IME to the moving

papers.

16. Several months elapsed between the time discovery responses were provided and the NOI

was filed, ample time for Defendant to schedule depositions or IMEs.

17. Furthermore, pursuant to this Court's Certification Order there was only a limited time

for discovery to proceed from that point and the NOI was prudently filed.

18. There was no incorrect material fact in the certificate of readiness and Plaintiff complied

with all outstanding discovery demands. Therefore, the NOI should not be vacated.

II. Defendant had notice and several opportunities to request outstanding discovery

demands if any.

19. A Supreme Court, State of New York, Nassau County Order was entered on September

3
8, 2014, stating Plaintiff must file a note of issue within ninety (90) days.

20. This Order also stated all parties must respond to outstanding discovery within thirty (30)

days and all parties must file a stipulation extending the note of issue if discovery is outstanding.

21. This Court should take notice that Defendant knew what was going on and decided not to

respond to several documents.

22. Defendant failed to enter into a stipulation to extend the time to file the note of issue.

23. Defendant had until October 8, 2014, to respond to all outstanding discovery as per the

above-mentioned Order.

24. Defendant submitted a notice of motion on December 5, 2014, to vacate the NOI long

after discovery should have been completed.

25. Defendant has also not responded to several documents including Plaintiff's affirmation

in opposition to motion for change of venue dated November 8, 2014.

26. Defendant waited long after the time to complete discovery to present this motion to

Plaintiff, and should not be entitled to vacate NOI in order to compel plaintiff to provide

outstanding discovery when the time to complete discovery was October 8, 2014.

27. Defendant has waited almost two months after discovery was to be complete to seek

outstanding discovery when they had notice of this Order and date for time of completion of

discovery.

III. The time to move for summary judgment should not be extended.

28. Defendant seeks to extend the time to move for summary judgment to 120 days after the

completion of all discovery. However, Defendant provides no justification for such an extension.

29. Discovery was completed on October 8, 2014.
30. Pursuant to CPLR § 3212, “[a]ny party may move for summary judgment in any action,

after issue has been joined; provided however, that the court may set a date after which no such

motion may be made, such date being no earlier than thirty days after the filing of the note of

issue. If no such date is set by the court, such motion shall be made no later than one hundred

twenty days after the filing of the note of issue, except with leave of court on good cause

shown.”

31. This Court has issued an order with respect to the time to move for summary judgment.

Pursuant to this Court’s Certification Order of May 29, 2014, motions for summary judgment

must be filed within sixty (60) days of the filing of the note of issue.

32. Accordingly, Defendant must show good cause to be allowed to file a motion for

summary judgment after the time set by the Court. See Brill v. City of NY, 2 N.Y.3d 648

(2004).

33. “{G]ood cause in CPLR 3212 (a) requires a showing of good cause for the delay in

making the motion—a satisfactory explanation for the untimeliness—rather than simply

permitting meritorious, nonprejudicial filings, however tardy.” Brill v. City of NY, 2 N.Y.3d

648 (2004) (Internal quotation marks excluded).

34. Defendant utterly fails to address the issue of why this Court should extend the time to

file a motion for summary judgment in either their Memorandum of Law or the Affirmation in

Support.

35. Accordingly, that portion of Defendant’s motion which seeks to extend the time to file a

motion for summary judgment should be denied.
CONCLUSION
USLOIN

36. Defendant has failed to show that that a material fact in the certificate of readiness is

incorrect or that it fails to comply with the requirements. Plaintiff complied with all outstanding

discovery requests. Defendant has not shown an excuse for its failure to pursue further discovery

in the months between receiving Plaintiff's response to Elias’ discovery demands and the filing

of the NOI. Therefore, the note of issue should not be vacated. Defendant has failed to show

why the time to file a motion for summary judgment should be extended. Accordingly, the time

to file a motion for summary judgment should not be extended.

WHEREFORE, Defendant’s motion should be denied in its entirety.

Dated: December 26, 2014

f
New York, New York

7 KX
Géorge Peters, Esq
Law Offices of Peters & Associates, PLLC
402 West 145" Street 2" Floor
New York, NY 10031
(347) 751-0157
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knowledge
of the matter herein.

2. The above-entitled action was brought for personal injury.
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New York.

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's motion the note of issue.

The note of sue was served and filed on or about Nove 12,
the Order of this Court.

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CERTIFICATE OF SERVICE

I hereby certify that on December 30, 2014, I caused a true and correct copy of

the foregoing Attorney Affirmation in Opposition to Defendant’s Motion to Vacate NOI

and Plaintiff's Affidavit to be served by priority first class mail and by electronic filing

upon:

GANNON, ROSENFARB & DROSSMAN
Attorneys for Defendant
Elias Properties Flatbush, LLC
100 William Street, 7" Floor
New York, New York 10038

SMITH MAZURE DIRECTOR
WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for Defendant
T-Mobile USA, Inc.
111 John Street, 20" Floor
New York, New York 10038

PAGANINI, CIOCI, PINTER CUSUMANO & FAROLE
Incoming Attorneys for Elias Properties Flatbush, LLC
3 Huntington Quadrangle, Suite 2015
Melville, New York 11747

Dated: December 30, 2014
New York, New York

George’T. Peters, Sq.
The Law Office of George T. Peters, PLLC
Attorney for Plaintiff
402 West 145th Street, 2nd Floor
New York, New York 10031
(347) 751-0157
SUPREME COURT OF THE STATE OF NEW YORK Index No. 600285/2013
COUNTY OF NASSAU_ Se Ben
JASON GRAHAM,

Plaintiff,

-against-

T-MOBILE USA, INC., and ELIAS PROPERTIES FLATBUSH, LLC,

Defendants.

ATTORNEY AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO
VACATE NOI AND PLAINTIFF’S AFFIDAVIT

LAW OFFICE OF GEORGE T. PETERS, PLLC
402 West 145" Street, 2°" Floor
New York, NY 10031
(347) 751-0157

ATTORNEY FOR PLAINTIFF

Case Info

Judge

John Galasso Track Judge’s New Case

Case No.

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Document Filed Date

December 30, 2014

Case Filing Date

August 07, 2012

County

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