ADDITIONAL CASES Liberty Elevator Corporation, Plaintiff v. Zeckendorf Towers, Defendant; Third-Party 595773/2017 Liberty Elevator Corporation, Plaintiff v. Empire State Realty Trust, Defendant; Second Third-Party 595370/2018 Liberty Elevator Corporation, Plaintiff v. ESRT 10 Union Empire State Realty Trust, Defendant; Third Third-Party 595300/2020 The following e-filed documents, listed by NYSCEF document number (Motion 002) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 79 were read on this motion to VACATE/STRIKE- NOTE OF ISSUE. The following e-filed documents, listed by NYSCEF document number (Motion 003) 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 82, 83 were read on this motion to VACATE/STRIKE – NOTE OF ISSUE. DECISION ORDER ON MOTION Motion sequence numbers 002 and 003 are consolidated herein for disposition and are disposed of in accordance with the following decision and order. On July 14, 2015, plaintiff Lucy Maldonado was working at a grocery store located at 10 Union Square in Manhattan (the Premises), when the freight elevator she was riding in dropped and came to a sudden stop. On March 14, 2017, Maldonado and her husband, suing derivatively, commenced this action against, among others, Liberty Elevator Corporation (Liberty), the company that allegedly installed and serviced the elevator (NYSCEF Doc. No. 1). On May 10, 2018, plaintiffs commenced a separate action against Empire State Realty Trust Inc. (Empire), alleging that Empire owned the Premises (NYSCEF Doc. No. 60). The two actions were consolidated by a so-ordered stipulation on August 16, 2018 (NYSCEF Doc. No. 35). In the interim, on September 20, 2017, Liberty commenced a third-party action against Zeckendorf Towers, One Union East Condominium, and East Union Square, alleging that they owned and maintained the Premises (NYSCEF Doc. No. 9), which plaintiffs later withdrew by stipulation of discontinuance on April 19, 2018 (NYSCEF Doc. No. 31). Liberty commenced a second third-party action against Empire on May 10, 2018, alleging that Empire owned and maintained the Premises (NYSCEF Doc. No. 26), and a third third-party action against ESRT 10 Union Square, LLC (ESRT) on May 26, 2020, alleging that it owned and maintained the Premises (NYSCEF Doc. No. 49). On July 13, 2020, plaintiffs filed a note of issue and certificate of readiness (NYSCEF Doc. No. 53). The certificate of readiness indicated that “[p]hysical examinations scheduled for July and August” and “discovery proceedings now known to be necessary [were] completed,” and that the action was “ready for trial” (NYSCEF Doc. No. 53). Now, in motion sequence number 002, Empire and ESRT move for an order (1) vacating the note of issue on the ground that the case is not ready for trial and discovery was not complete, (2) compelling Liberty to respond to their respective demands for a verified bill of particulars in the second and third third-party actions, and (3) extending their time to file dispositive motions 60 days from Liberty’s response to those demands. In motion sequence number 003, Liberty moves to vacate the note of issue and to remove the action from the trial calendar in order to allow for the completion of discovery, specifically ESRT’s deposition and Maldonado’s vocational rehabilitation assessment. Additionally, Liberty seeks an order extending its time to move for summary judgment until at least 60 days from the completion of ESRT’s deposition. DISCUSSION Uniform Rules for Trial Courts (22 NYCRR) §202.21 (e) allows a party to move to vacate a note of issue, “[w]ithin 20 days after service of a note of issue and certificate of readiness 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 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.” “Where a party timely moves to vacate a note of issue, it need show only that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of…section [202.21] in some material respect” (Vargas v. Villa Josefa Realty Corp., 28 AD3d 389, 390 [1st Dept 2006] [internal quotation marks and citation omitted]). “[A] note of issue should be vacated when [it] is based upon a certificate of readiness which contains an erroneous fact, such as that discovery has been completed” (Ruiz v. Park Gramercy Owners Corp., 182 AD3d 471, 471 [1st Dept 2020][quotation marks and citations omitted]; see Matos v. City of New York, 154 AD3d 532 [1st Dept 2017][same]). Here, the subject motions were timely made within 20 days of service of the note of issue. Liberty also demonstrated, and plaintiffs do not dispute, that discovery remained outstanding at the time the note of issue was filed. Specifically, at the time plaintiffs filed the note of issue, Liberty had not had the opportunity to obtain pertinent discovery from ESRT in the third third-party action, which Liberty initiated before the note of issue was filed, and Maldonado’s vocational assessment had yet to be conducted. Since plaintiffs’ certificate of readiness erroneously indicated that discovery was complete and that the case was ready for trial, the note of issue should be vacated. Plaintiffs ask the court not to vacate the note of issue, asserting that Liberty unduly delayed in bringing the third third-party action and it should, therefore, be severed in order to avoid further delay and prejudice to plaintiffs. However, a delay in commencing a third-party action, by itself, does not necessarily warrant severance (see Nielsen v. New York State Dormitory Auth., 84 AD3d 519, 520 [1st Dept 2011]; Escourse v. City of New York, 27 AD3d 319, 320 [1st Dept 2006]). While plaintiffs suggest that Liberty intentionally delayed in bringing the third third-party action, Liberty explains that it did not become aware of the possibility that ESRT owned the Premises until Empire’s employee testified during a deposition on December 3, 2019 that Empire simply managed the Premises, which was owned by ESRT (NYSCEF Doc. No. 81, at ss14; NYSCEF Doc. No. 98, at 25:21). Liberty asserts that it thereafter served Empire with a notice to admit in order to ensure that it did not inadvertently pursue the wrong entity. Liberty did not receive a response until on or about March 2, 2020, admitting ESRT’s ownership of the Premises (NYSCEF Doc. No. 81, at
