Cioffi v. S.M. Foods, Inc.

• Decision Date: 24 December 2019
• Docket Number: Index No. 55391/11,2015–12464
• Citation: 178 A.D.3d 1003,116 N.Y.S.3d 70
• Parties: Frederick M. CIOFFI, et al., Appellants, v. S.M. FOODS, INC., et al., Defendants Third-Party Plaintiffs-Respondents, Atlanta Foods International, Defendants-Respondents; Village of Tuckahoe, et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1003
116 N.Y.S.3d 70

Frederick M. CIOFFI, et al., Appellants,
v.
S.M. FOODS, INC., et al., Defendants Third-Party Plaintiffs-Respondents,

Atlanta Foods International, Defendants-Respondents;

Village of Tuckahoe, et al., Third-Party Defendants-Respondents.

2015–12464
Index No. 55391/11

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 5, 2018
December 24, 2019

116 N.Y.S.3d 72

Grant & Longworth, LLP (Jonathan Rice and Pollack Pollack Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel), for appellants.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for defendants third-party plaintiffs-respondents.

White & Quinlan, LLP, Garden City, N.Y. (Terence M. Quinlan of counsel), for defendants-respondents.

WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

178 A.D.3d 1003

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated December 2, 2015. The order, insofar as appealed from, denied the plaintiffs' motion to strike the note of issue and certificate of readiness and to direct further discovery, and granted those branches of

178 A.D.3d 1004

the motion of the defendants Atlanta Foods International, Russell McCall's, Inc., Russell McCall's, Inc., doing business as Sheila Marie Foods, and Doug Jay which were to quash subpoenas served upon certain nonparties in New York and to preclude the plaintiffs from using any discovery produced in response to subpoenas served upon certain nonparties in Georgia.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

Pursuant to the Uniform Rules for Trial Courts, "[w]ithin 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" (Uniform Rules for Trial Courts § 202.21[e] ). A statement in a certificate of readiness to the effect that all pretrial discovery has been completed is a material fact, and where that statement is incorrect, the note of issue should be vacated (see Barrett v. New York City Health & Hosps. Corp., 150 A.D.3d 949, 951–952, 55 N.Y.S.3d 318 ; cf. Slovney v. Nasso, 153 A.D.3d 962, 61 N.Y.S.3d 568 ; Rizzo v. Balish & Friedman, 153 A.D.3d 869, 870, 61 N.Y.S.3d 257 ).

Where a party's motion to vacate the note of issue is timely, the party is "required only to demonstrate why the case [is] not ready for trial, and [is] not required to establish that additional discovery [is] necessary because unusual or unanticipated circumstances [have] developed subsequent to the filing of the note of issue" ( Jacobs v. Johnston, 97 A.D.3d 538, 538, 948 N.Y.S.2d 321 ; see 22 NYCRR 202.21 [d][e] ). However, where the Supreme Court has directed the completion of discovery by a certain date or where the party seeking vacatur has failed to timely comply with court orders and discovery

116 N.Y.S.3d 73

demands, denial of a motion to vacate is proper (see Encarnacion v. Monier, 81 A.D.3d 875, 917 N.Y.S.2d 875 ; Rampersant v. Nationwide Mut. Fire Ins. Co., 71 A.D.3d 972, 973, 898 N.Y.S.2d 567 ; Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 955, 878 N.Y.S.2d 178 ).

Here, the Supreme...