The Court granted defendant's motion to strike the Note of Issue.
|Claimant(s):||KATHERINE MADORE AND PHILIP MADORE|
|Claimant short name:||MADORE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK (Olympic Regional Development Authority)|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Drew Palcsik, Esq.
Schneider & Palcsik
|Defendant's attorney:||Chelsea E. Keenan, Esq.
Goldberg Segalla, LLP
|Third-party defendant's attorney:|
|Signature date:||September 20, 2017|
|See also (multicaptioned case)|
Defendant moves to strike the note of issue pursuant to § 202.21 (e)(1) of the Uniform Rules For Supreme and County Courts [22 NYCRR]).
Claimant, Katherine Madore, seeks damages for personal injuries sustained in a motorcycle accident on July 25, 2014. Claimant, Philip Madore, is the husband of Katherine and asserts a derivative claim for loss of services. By Order dated October 12, 2016 the parties were directed to complete disclosure and file the Note of Issue and Certificate of Readiness for Trial on or before July 1, 2017. The Note of Issue and Certificate of Readiness for Trial was thereafter filed on July 3, 2017 and the instant motion to strike was filed on July 21, 2017.
Defendant contends, contrary to the representations made by claimants' counsel in the Note of Issue and Certificate of Readiness for Trial, that certain items of discovery remain outstanding and this matter is not ready for trial. In particular, defendant indicates that independent medical examinations have not been completed, Philip Madore has not been deposed, and authorizations for certain medical records have not been provided.
In opposition to the motion, claimants' counsel points out that they were not served with notices of examinations before trial or a demand for physical examinations and that defendant's failure to pursue discovery has been dilatory. Defense counsel states in reply that it was not substituted as counsel for the defendant until April 12, 2017 "and therefore was not a party to any discovery scheduling agreement" (reply affirmation of Chelsea Keenan, Esq., dated August 9, 2017, ¶ 5). Defense counsel also states that although they have been "working" to complete discovery within the time frame set by the Court, they have been unable to do so due to Katherine Madore's extensive medical history (id.).
A party may move to strike the Note of Issue within 20 days following service of the Note of Issue and Certificate of Readiness for Trial by showing in what respects the case is not ready for trial (22 NYCRR § 206.12 [d]). "[T]he Court may strike 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 [§ 206.12] in some material respect" (22 NYCRR § 206.12 [d]). Defendant's motion was timely, having been served within 20 days of the service of the Note of Issue.
Contrary to defense counsel's representations, it appears that claimants have complied with all properly demanded discovery, except for certain medical authorizations. Although neither an examination before trial of Philip Madore nor an independent medical examination of Katherine Madore have been completed, defendant does not refute claimants' counsel's assertion that discovery notices for these matters were not served (see CPLR 3102; 3107; 3121). While such a failure could result in waiver, the Certificate of Readiness for Trial indicates, erroneously, that physical examinations were completed and medical reports were filed and exchanged. Inasmuch as material facts in the Certificate of Readiness are incorrect, the Note of Issue must be stricken. That said, it should nevertheless be noted that it appears defense counsel has been dilatory in pursuing discovery in this matter. The Court does not view a substitution of attorneys as a reasonable excuse for the delay in prosecuting this action. As a result, the Court fully expects the parties to complete discovery within the time hereinafter set forth.
Based on the foregoing, defendant's motion is granted and the Clerk of the Court of Claims is directed to strike the Note of Issue previously filed in this claim. The parties are directed to complete discovery and file the Note of Issue and Certificate of Readiness for Trial on or before January 9, 2018.
September 20, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The rule cited does not apply in the Court of Claims. The rule governing the filing of the Note of Issue and Certificate of Readiness for Trial in the Court of Claims is 22 NYCRR 206.12.