McKiernan v. Vaccaro, 2017–07307

• Decision Date: 16 January 2019
• Docket Number: 2017–11396,2017–07307,Index No. 796/14
• Citation: 91 N.Y.S.3d 478,168 A.D.3d 827
• Parties: Peter G. MCKIERNAN, Appellant, v. Joseph VACCARO, etc., et al., Defendants, Ernest Mancuso, Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 827
91 N.Y.S.3d 478

Peter G. MCKIERNAN, Appellant,
v.
Joseph VACCARO, etc., et al., Defendants,

Ernest Mancuso, Jr., Respondent.

2017–07307
2017–11396
Index No. 796/14

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

Argued—September 28, 2018
January 16, 2019

Peter G. McKiernan, White Plains, NY, appellant pro se.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

168 A.D.3d 828

ORDERED that the order entered May 9, 2017, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order entered August 24, 2017, is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Ernest Mancuso, Jr., which was for summary judgment dismissing the cause of action alleging aiding and abetting an assault and battery insofar as asserted against him, and substituting therefor a provision denying that branch of the motion; as so modified, the order entered August 24, 2017, is affirmed, without costs or disbursements.

On January 18, 2013, the plaintiff allegedly was injured during a "road rage" incident that resulted in a physical altercation with the defendant Joseph Vaccaro. Vaccaro was a front-seat passenger in a vehicle driven by his grandfather, the defendant Ernest Mancuso, Jr. While the plaintiff and Mancuso differ in their accounts as to what led up to the physical altercation, it is undisputed that Vaccaro exited Mancuso's vehicle and struck the plaintiff in the face.

Thereafter, the plaintiff, proceeding pro se, commenced this action against, among others, Vaccaro and Mancuso, inter alia, to recover damages for personal injuries. With respect to Mancuso, the plaintiff asserted causes of action alleging, inter alia, negligence and aiding and abetting an assault and battery.

In July 2016, the plaintiff filed a note of issue along with an affidavit explaining that discovery remained outstanding, including

91 N.Y.S.3d 480

the parties' depositions and an independent medical examination of the plaintiff. Thereafter, Mancuso moved to vacate the note of issue due to the outstanding discovery issues. The plaintiff opposed Mancuso's motion, arguing that the motion should be denied on the grounds that the affirmation of good faith submitted by Mancuso's counsel was insufficient and Mancuso did not comply with prior discovery orders by, inter alia, failing to provide an authorization to obtain his auto insurance carrier's no fault file or all copies of his primary, contributing, and excess insurance agreements, except for a copy of his homeowner's policy. The plaintiff then cross-moved to compel Mancuso to provide outstanding discovery.

While Mancuso's motion to vacate the note of issue and the plaintiff's cross motion to compel discovery were pending,

168 A.D.3d 829

Mancuso moved for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff cross-moved pursuant to CPLR 3212(g) for an order specifying facts not in dispute.

In an order entered May 9, 2017, the Supreme Court granted the Mancuso's motion to vacate the note of issue and thereupon set forth, inter alia, dates by which the parties' depositions...