3212(a)

Mack v Harley, 2018 NY Slip Op 06521 [2d Dept. 2018]

The plaintiff commenced this negligence action to recover damages for the personal injuries she allegedly sustained as a result of the accident. A first note of issue was filed on September 20, 2013, but the parties subsequently stipulated to take the matter off the trial calendar in order to resolve outstanding discovery issues. In an order dated July 31, 2015, the Supreme Court directed the plaintiff to file a new note of issue no later than August 20, 2015. The plaintiff filed the second note of issue on or about August 6, 2015. The plaintiff then moved for summary judgment on the issue of liability. In an order dated January 29, 2016, the Supreme Court granted the motion. The defendants appeal.

Contrary to the defendants’ contention, the plaintiff’s motion was not untimely pursuant to CPLR 3212(a). The note of issue filed on September 20, 2013, was, in effect, nullified when the case was removed from the trial calendar (see Lance Intl., Inc. v First Natl. City Bank, 86 [*2]AD3d 479, 480; Farrington v Heidkamp, 26 AD3d 459, 460; Negron v Helmsley Spear, Inc., 280 AD2d 305, 305; Bono v Barzallo, 260 AD2d 592). Therefore, the operative note of issue was filed on or about August 6, 2015 (see Lance Intl., Inc. v First Natl. City Bank, 86 AD3d at 480; Williams v Peralta, 37 AD3d 712, 713), and the motion was timely.

Khan v Macchia, 2018 NY Slip Op 06519 [2d Dept. 2018]

Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(e), provides, in pertinent part, 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.”

The second method, pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21(d), provides, in pertinent part, that: “Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial [*2]proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.”

Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee’s implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment (see Brill v City of New York, 2 NY3d 648, 652; Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740; 741-742; Grochowski v Ben Rubins, LLC, 81 AD3d 589, 591; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; Kung v Zheng, 73 AD3d 862, 863; Abdalla v Mazl Taxi, Inc., 66 AD3d 803, 804; Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Accordingly, the Supreme Court should have granted Macchia’s motion for leave to extend the time to move for summary judgment, and we remit the matter to the Supreme Court, Queens County, for the selection of a new date by which summary judgment motions shall be filed.

 

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