Grant v. Wainer
| Decision Date | 07 January 1992 |
| Citation | 179 A.D.2d 364,577 N.Y.S.2d 839 |
| Parties | Francis X. GRANT, as Administrator of the Estate of Isabelle H. Grant, and Francis X. Grant, Individually, Plaintiff-Respondent, v. Daniel J. WAINER, M.D., Defendant-Appellant, John H. Albanese, M.D., et al., etc., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Before ELLERIN, J.P., and KUPFERMAN, ROSS, and SMITH, JJ.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 6, 1991, which, inter alia denied the motion of defendant, Daniel J. Wainer, M.D., to strike the case from the Trial Calendar and dismissed, sua sponte pursuant to CPLR 1010, a third-party action commenced by defendant Wainer, unanimously affirmed, with costs.
In June, 1988, plaintiff commenced a medical malpractice action against defendant Daniel J. Wainer, M.D. (Wainer). Issue was joined by said defendant in July of 1988. Thereafter, a preliminary conference order directed that all depositions be completed by September 26, 1989 and that all third-party practice be completed thirty days after the final witness had been examined. Depositions were taken between July 26, 1989 and January 9, 1991. Plaintiff then filed a certificate of readiness for trial on January 14, 1991. By motion dated February 12, 1991, defendant Wainer moved for an order to strike plaintiff's certificate of readiness, alleging that all pretrial discovery had not yet been completed. On March 6, 1991, defendant Wainer served a third-party summons upon Dr. Hastanan, an employee of Pelham Bay.
Pursuant to Uniform Rules for Trial Courts, a party who serves and files a note of issue and a certificate of readiness must indicate that discovery proceedings now known to be necessary have been completed; that there are no outstanding requests for discovery; and that there has been a reasonable opportunity to complete the proceedings (Hodes v. City of New York, 165 A.D.2d 168, 566 N.Y.S.2d 611; 22 NYCRR 202.21). A court may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect (Savino v. Lewittes, 160 A.D.2d 176, 177, 553 N.Y.S.2d 146). Moreover, a party may not obtain further disclosure after the filing of a note of issue and certificate of readiness absent a factual showing of "special, unusual or extraordinary circumstances." (Goldsmith v. Howmedica, Inc., 158 A.D.2d 335, 336, 551 N.Y.S.2d 23).
Plaintiff has fully complied with the requirements for the filing...
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