SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS X.

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1 To commence the 30 day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS X JAMES RAGUSO, -against - Plaintiff, BRIAN EZRATTY, DEBRA EZRATTY, JOCELYN DEUTSCH, MICHAEL DEUTSCH and AJ BONOCORE AGENCY, Defendants X JOCELYN DEUTSCH AND MICHAEL DEUTSCH, -against - Third-Party Plaintiffs, DECISION & ORDER Index No. 1569/2015 Sequence No. 1 Motion Date: 3/22/17 Index No. TP-1 G & T IRRIGATION LANDSCAPING, INC., Third-Party Defendants X BRIAN EZRATTY AND DEBRA EZRATTY, Second Third-Party Plaintiffs, -against - Index No. TP-2 G & T IRRIGATION LANDSCAPING, INC., Second Third-Party Defendants X GROSSMAN, J.S.C.

2 The following papers, numbered 1 to 14, were considered in connection with Defendants/Second Third-Party Plaintiffs Brian and Debra Ezratty s Notice of Motion, dated March 9, 2017, for an Order, vacating the Note of Issue, and Defendants/Third-Party Plaintiffs Jocelyn and Michael Deutsch s Notice of Cross Motion, dated March 10, 2017, for an Order, vacating the Note of Issue. PAPERS NUMBERED Notice of Motion/Affirmation in Support/Exhs. A-H 1-10 Notice of Cross Motion/Affirmation in Support Affirmation in Opposition 13 Affirmation in Support 14 On April 24, 2015, Plaintiff James Raguso commenced this action, seeking damages for injuries he sustained from a slip and fall that occurred on February 17, 2014 on a driveway that was connected to 5 Vincent Lane and 9 Vincent Lane in Armonk, New York. Defendants Brian and Debra Ezratty own the property at 5 Vincent Lane, while Defendants Jocelyn and Michael Deutsch and AJ Bonocore Agency own the property at 9 Vincent Lane (Notice of Motion, Exh. A). Defendants Ezratty interposed a Verified Answer, generally denying the allegations, raising three (3) affirmative defenses, and injecting a cross claim against Defendants Deutsch and AJ Bonocore Agency (Notice of Motion, Exh. B). Defendants Deutsch interposed a Verified Answer, generally denying the allegations, raising five (5) affirmative defenses, and injecting two (2) cross claims against Defendants Ezratty and AJ Bonocore Agency (Notice of Motion, Exh. C). On or about August 11, 2015, Defendants Deutsch commenced a third-party action against Third-Party Defendant G & T Irrigation Landscaping, Inc. ( G & T ). G & T interposed an Answer on or about October 2, 2015 (Notice of Motion, Exhs. D, E).

3 On or about December 11, 2015, Defendant Ezratty commenced a third-party action against Third-Party Defendant G & T Irrigation Landscaping, Inc. ( G & T ). G & T interposed an Answer on or about March 18, 2016 (Notice of Motion, Exhs. F, G). AJ Bonocore Agency did not appear in the action. On August 6, 2015, the Honorable Christine A. Sproat, J.S.C. so-ordered the preliminary conference stipulation and schedule, which directed, inter alia, disclosure to be completed by June 6, 2016, and a Note of Issue to be filed by June 7, The matter was reassigned to the undersigned in the beginning of 2017, and counsel appeared for a pre-trial conference on February 8, At that conference, despite the passage of 17 months, counsel stated that discovery was not complete, no depositions had been taken, including Plaintiff s, and they needed more time. No explanation was offered for the delay by any of the three Defendants attorneys. The moving papers are equally devoid of any explanation or excuse for the repeated failures. They do not even reflect that a deposition had been noticed in the preceding 17 months. The Court was unpersuaded, as eight months had passed since the discovery deadline and nine months of opportunities to complete discovery preceded the deadline. The Court directed the Note of Issue to be filed, ordered the parties to complete discovery, and set the matter down for a pre-trial conference on May 25, 2017, and trial on May 30, On February 21, 2017, Plaintiff filed the Note of Issue and Certificate of Readiness, indicating that the matter was ready for trial and that certain exchange of items were pending (Notice of Motion, Exh. H). On March 9, 2017, Defendants Ezratty filed the instant motion, seeking an Order, pursuant to NYCRR (e), vacating Plaintiff s Note of Issue and/or ordering the

4 completion of discovery, and extending Defendants time to file a motion for Summary Judgment to May 5, Defendants Ezratty assert that since the last court appearance, the parties have gone about scheduling and conducting the remaining discovery, but that Plaintiff filed the Note of Issue notwithstanding that the Court had already ordered a trial date. They complain that the Note of Issue was sent to an incorrect address, and they did not receive it until March 7, Defendants Ezratty argue that the Note of Issue was filed despite the fact that all depositions and medical examinations are outstanding, and therefore, its filing is improper. They state that they are making this motion in an abundance of caution, but they anticipate that the depositions will be completed by late March, and the medical examination soon thereafter. Finally, Defendants Ezratty argue in the alternative that the Court could direct that discovery be completed by a date certain and extend Defendants time to file a motion for summary judgment to May 5, 2017, which is only a short time after the expiration of the 60-day deadline (April 23, 2017). The Court has no basis upon which to believe Defendants would complete their discovery in the time they now request. They have made their choice to do nothing for 18 months. Apparently, they believed they could try the case with limited discovery, and now they will be given the chance to do so. Defendants Deutsch cross move for the same relief, joining in Defendants Ezratty s arguments. In addition, in his opposition papers, Plaintiff Raguso does not oppose the application, and requests that the Court grant the relief requested. Finally, G & T joins in the application. According to NYCRR (e): (e) Vacating Note of Issue. Within 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

5 material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. * * * As a threshold matter, the motion is timely. See NYCRR (e). To the extent the parties are asserting that they need more time to complete discovery, the Court is troubled by the unprofessional, cavalier, lackadaisical and professionally irresponsible approach to this litigation. The parties made no attempt to complete discovery until this Court set the matter down for trial approximately 11 months after the first pre-trial conference was to have already occurred. Now, the parties counsel are brazenly asking to be rewarded for their unjustified and continual delays, and the Court does not see why an extension, with another deadline, will cause discovery to be completed. Plaintiff s representation on the Certificate of Readiness There has been a reasonable opportunity to complete the foregoing proceedings is the height of understatement. In fact, the parties have been granted prior extensions by Justice Sproat. According to the file s notes, it appears that Justice Sproat granted the parties a final extension for completion of discovery until October 27, That day, Justice Sproat conducted a final pre-trial conference and instructed the parties that there were no further adjournments. And yet, four months later, on February 8, 2017, at the next pre-trial conference, in open court, in front of the undersigned, the parties counsel again admitted that nothing had been done to move the case forward, and failed to explain why they were still delinquent in commencing, let alone completing, discovery. The Court will not be taken advantage of by counsel. As it is often commonplace in many lawsuits, the attorneys here, by their inactions, appear to have adopted the belief that the Preliminary Conference Order is not a court order, or they believe they can ignore it. However, [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a

6 litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a court may make such orders * * * as are just, including dismissal of an action (CPLR 3125). Kihl v. Pfeffer, 94 N.Y.2d 118, 123 (1999). Subsequent to Kihl, the Court of Appeals voiced its frustration with the failure of counsel to comply with Court orders regarding discovery: It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that [l]itigation cannot be conducted efficiently if deadlines are not taken seriously... [and] that disregard of deadlines should not and will not be tolerated (Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, PC [Habiterra Assoc.], 5 N.Y.3d 514, 521 [2005], citing Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725 [2004]; Brill v. City of New York, 2 N.Y.3d 648 [2004]; Kihl v. Pfeffer, 94 N.Y.2d 118 [1999]). But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the Clerk s Office. Cadichon v. Facelle, 18 N.Y.3d 230, 236 (2011). Counsel for the parties should also heed the words of Judge Graffeo in dissent: In applying the rules set by the Legislature in the CPLR, we have never suggested that we do not appreciate the difficulties and practice pressures experienced by members of the trial bar. Certainly, the time and effort needed to identify and secure appropriate expert witnesses, along with other relevant evidence, prior to conducting depositions or complying with other discovery demands may, in come circumstances, result in considerable delays, even when there have been diligent attempts to comply with discovery orders. But based on our precedent it is evident that, rather than merely ignoring court-ordered deadlines, the proper recourse - both to fulfill the professional obligations owed the client and in respect for the courts - is to timely ask for an extension from one s adversary, move to compel discovery from a recalcitrant party, request a preclusion order or otherwise seek judicial assistance in resolving discovery disputes. In light of the various informal and statutory options available to counsel to address legitimate delays, extensive periods of inactivity that result in the violation of court orders should not be lightly condoned, particularly where trial judges have made repeated attempts to spur the parties to complete discovery as occurred here.

7 Id. at After all, litigation is an uncertain business for both plaintiffs and defendants and neither side benefits when disputes are unnecessarily protracted. Plaintiffs are entitled to prompt resolution of their claims they have a legitimate need to know whether they have a viable cause of action and, if so, to secure adequate compensation for their injuries within reasonable time constraints. This is especially true in cases that involve seriously injured plaintiffs who may be unable to work and may suffer physical and financial hardship while their lawsuits are pending. Similarly, defendants are anxious to learn whether they will be held responsible for the claims made against them and, if so, the extent of the judgment that will be imposed. Litigations therefore desire and deserve a court system that administers justice in a fair, respectful and reasonably efficient manner. It is this policy that the Legislature has endeavored to advance by fashioning rules governing the process of litigation... While the motion before the Court is not one for dismissal, the Court could dismiss the action based on the failure to comply with Court ordered disclosure. Shapiro v. Kurtzman, 32 A.D.3d 508 (2 nd Dept. 2006). Yet, it does not appear that Plaintiff should suffer as a result of Defendant s inaction. It could be argued that the matter should be dismissed for lack of prosecution under CPLR 3216, or perhaps Defendants Answers should be stricken; but that result would require a motion from Plaintiff s counsel. Lucas v. Stam, 147 A.D.3d 921 (2 nd Dept. 2017); Wilson v. Galicia Contr. & Restoration Corp., 8 A.D.3d 560 (2 nd Dept. 2004); Espinal v. City of New York, 264 A.D.2d 806 (2 nd Dept. 1999). As far as the Court can tell, there has been little, if any, movement in the litigation, and the Court will not tolerate further delays. The litigants are entitled to have their day in court, despite the negligence, and possible malpractice, of counsel. Counsel, by their indolence and inaction, have indicated their willingness to proceed to trial without discovery, at least until the filing of the instant motion. They shall have the trial dates previously scheduled. The fact that all the parties agree that they want, and need, more time after 17 months of inaction, is of no moment to this Court. The Court has a responsibility to

8 the litigants and to the timely administration of justice. As such, it is hereby ORDERED that the motion and cross motions are denied; and it is further ORDERED that the parties and counsel are to appear before the undersigned on Thursday, May 25, 2017 at 9:30 a.m. for jury selection, and on Tuesday, May 30, 2017 at 10:00 a.m. to commence a 4-day trial. The foregoing constitutes the Decision and Order of the Court. Dated: Poughkeepsie, New York April 12, 2017 HON. VICTOR G. GROSSMAN, J.S.C.

9 To: Matthew A. Cuomo, Esq. Cuomo LLC Attorney for Defendants/Third-Party Plaintiffs Debra & Brian Ezratty 200 Old Country Road, Suite 2 South Mineola, New York Facsimile No Marc Schauer, Esq. Sobo & Sobo, LLP Attorneys for Plaintiff James Raguso 1 Dolson Avenue Middletown, New York Facsimile No Varvaro, Cotter & Bender Attorneys for Defendants/Third-Party Plaintiffs Jocelyn & Michael Deutsch 1133 Westchester Avenue, Suite S-325 White Plains, New York Facsimile No Marc D. Orloff, Esq. Law Office of Marc D. Orloff, P.C. Attorneys for Third-Party Defendant/Second Third-Party Defendant G & T Irrigation Landscaping, Inc. 55 Main Street, P.O. Box 386 Goshen, New York Facsimile No