Minorcyzk v City of New York 2006 NY Slip Op 30833(U) October 30, 2006 Supreme Court, New York County Docket Number: /04 Judge: Eileen A.

Transcription

1 Mnorcyzk v Cty of New York 2006 NY Slp Op 30833(U) October 30, 2006 Supreme Court, New York County Docket Number: 02928/04 Judge: Eleen A. Rakower Cases posted wth a "30000" dentfer,.e., 203 NY Slp Op 3000(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* ] ( oj SUPREME COURT THE STATE OF NEW YORK COUNTY OF NEW YgRK: PART JC EUGENUSZ MNO Rf ZK and BARBARA MNORCYZK, : J ~ r - aganst Plantff, ndex-no /04 ORDER AND.DECSON CTY OF NEW YORK,DORMTORY AUTHORTY OF THE STATE OF N~W YORK and LRO ENGNEERNG AND CCONSTRUCTON MANAGEMENT, PC.,, Defendants ~ JC THE CTY OF NEW Y<pRK and LRO ENGNEERNG AND CONSTRUCTON MANAGEMENT PC., Thrd Party Plantffs, /:'. - aganst - J,., 4'oy ~().. 06 NTER CONNECTON LECTRC, NC., _- 0ouAh... v~.. _ 2Qo6 -r, >"Q.~>-"a Thrd PartyDeferdants ){ ~~ ELEEN A. RAKO ER, J.S.C. 0~~ Plantffs commenced ths acton to recover damages for njures sustaned by. Eugenusz Mnorcyz~< whle on hs job. Defendant Dormtory Authorty of the State of New York ("Do~tory") moves_ to strke plantffs' Note of ssue dated July, 2006 on the ground t at there s dscovery outstandng. Thrd party defendantlnter Connecton Electrc, nc. ("nter Connecton") submts an affrmaton n support of the nstant moton. Prelmnarly, onntory urges the Court to treat the nstant moton as tmely, despte ts beng ma e beyond the 20 days from plantffs' flng the Note of ssue. --

3 [* 2] Dormtory shows that t prevously served and fled a tmely moton wth the Court that was rejected on!' echncal grounds. Plantff does not object, and the Court wll consder the moton as tmely. See, 22 NYCRR 202.2(e). Defendant D0nntory argues that plantffs' flng of a Note of ssue was premature because s~veral tems of dscovery are owed to them by ther co-defendants 'and thrd party defendant nter Connecton. These nclude the deposton of a wtness produced by nter c!onnecton (ordered at a complance conference dated Aprl 8, 2006), Lro Engneerng and Constructon Management PC ("Lro")'s response to defendant DonntoJ~' s thrd notce for dscovery and nspecton dated March 7, 2006, and outstandng tems from Lro that Dormtory requested at a deposton taken on June 6, 2006 (ncf udng addresses for Al Palma, Zhena Lvosky and Eugene McCarthy; a copy or nter Connecton's daly feld report for December 5, 2003, a copy oflro's safet) program, a copy of nter Connecton's ste safety plan, copes of job ste progress photographs and a copy of Lro 's engneerng ste safety checklst).! Plantffs opp~se Dormtory's moton to strke, and argue that the nstant matter has been unduly del;ayed by defendants. Further, plantffs assert that they have compled wth all dscovery demands. Plantffs conclude they should not be punshed due to the tlefendants' nablty to complete dscovery among themselves. Wthn 20 days after servce of a note of ssue and certfcate of readne~s, any party to the acton or specal proceedng may move to vacate the note of ssue, upon affdavt showng n what respects the case s Jot ready for tral, and the court may vacate the note of ssue f t appeats that a materal fact n the certfcate of readness s ncorrect, or that tbe certfcate of readness fals to comply wth the requrements of ths sbcton n some materal respect...f the moton to vacate a note of ssue \s granted, a copy of the order vacatng the note of ssue shall -----be_s_e_rv_e-+-j_u-pon the clerk of the tral court. 22 NYCRR (e) Thrd party defl ndant nter Connecton tmely moved to vacate plantff's Note oflssue and strke the case from he tral calendar on or about July 7, Dormtory then fled a tmely cross moton date July 2, 2006 seekng the same relef. Dormtory's cross-moton was rejected by the Court bee use nter Connecton's moton was never receved by and/or fled wth the Court. -2-

4 [* 3] ( Thrd party dbfendant nter Connecton supports Dormtory's moton, yet t fals to provde dochments accordng to the pror complance Order or explan ts falure to do so. Not4bly, Dormtory seeks no sancton aganst the malngerng partes or an order facltathg closure to dscovery. Plantffs' attlmey affrmaton n support of ts request that ths matter be placed on the tral callendar makes no materal msrepresentaton. ndeed, t attaches a copy of the Com~lance Conference Order of Justce Stallman and states that "[p ]lantffs have cot.pled wth all drectves of sad Order and ths case s now ready to be placed on the tral calendar." Absent from the papers submtted to ths Court s any reason why d~covery was not completed by the dates stated n that complance order or why such dscovery cannot be completed wthn the next 60 days. Whle t s w~ll settled that f a party requests such relef and affrms that dscovery s legtmately outstandng the note of ssue s seen as premature and must be vacated See, Sch~cter v. 20 E. 90 h St. Owners, nc., et al., 27A.D.2d224, 225 (st Dept. 2000) (not~ of ssue should be vacated when t s clear that all dscovery was not yet completj at the tme of flng), plantff should not be held hostage to passvty among defdndants. Wherefore t hereby,.. ORDERED that defendant Dormtory Authorty of the State of New York's moton s granted an~ the plantffs note of ssue s vacated, on the condton that all dscovery s completcld wthn 60 days of ths order, and t s further ORDERED thjt defendant Lro Engneerng and Constructon Management PC., and Thrd Patfy Defendant nter-connecton Electrc, nc. shall provde defendant Dormtory! Authorty of the State of New York wth all outstandng dscovery on or before December 29, 2006, and t s further ORDERED th \t plantffs' tme to fle ther note of ssue s extended untl January s, Ths consttutes the Decson and Order of the Court. All other relef requested s dened. -3-

5 [* 4]... ' DATED: October bo, 2006 ELEEN A. RAKOWER, J.S.C. Fl Leo Nov 06 2DD6 J counrt'~ YoR( - "~OFFQr --'~- -4-