ADDITIONAL CASES Flushing Commons Property Owner, LLC, Tishman Construction Corporation, Plaintiff v. Five Star Electrical Contracting Corp., Defendant. The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 75, 76, 77, 78, 79, 80, 81 were read on this motion to VACATE/STRIKE – NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR. Upon the foregoing documents, it is ordered that this motion is granted in part and denied in part. Defendants move, pursuant to 22 NYCRR 202.21(e), to strike the plaintiff’s note of issue and certificate of readiness and for an extension of time for defendants to file summary judgment motions; or in the alternative, pursuant to CPLR 3124, to compel the plaintiff to appear for an independent medical examination by a date certain with conditional language requiring the striking of the plaintiff’s verified complaint and/or the preclusion of the testimony and evidence at trial should plaintiff fail to comply with such order issued by this court in response to this motion. Defendants argue that the note of issue should be vacated because there remains outstanding discovery. In a February 20, 2020 status conference, the parties agreed that there was outstanding discovery and further agreed to a schedule by which discovery would be produced by all parties. Defendants were directed to designate a further Independent Medical Examination (IME) re: head injury and plaintiff was directed to provide authorizations for IRS records for years 2012 and 2013 to the extent not provided. The parties were directed to file the note of issue by May 15, 2020. Defendants argue that plaintiff’s IME remains outstanding, and that plaintiff failed to provide the authorizations requested. Plaintiff, in his opposition, concedes that an IME concerning head injuries is outstanding. However, plaintiff argues that defendants failed to argue that the IME is necessary, or that plaintiff’s June 2019 IME was flawed. Plaintiff also argues that additional discovery can be conducted while this action remains on the trial calendar. A court may vacate a note of issue where it appears that a material fact set forth therein, i.e., the representation that discovery is complete, is incorrect (see 22 NYCRR 202.21(e); Rivers v. Bimbaum, 102 AD3d 26 [2nd Dept 2012]; Gomes v. Valentine Realty LLC, 32 AD3d 699 [1st Dept 2006]; Herbert v. Sivaco Wire Corp., 1 AD3d 144 [1st Dept 2003]). Further, CPLR 3101 provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The words ‘material and necessary’ as used in CPLR 3101(a) are ‘to be interpreted liberally to require disclosure…of any facts bearing on the controversy’ (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406)” (Matter of Steam Pipe Explosion at 41st Street and Lexington Avenue, 127 AD3d 554, 555). Discovery is not complete here, as it is uncontested that there remains outstanding discovery. Plaintiff’s certification in his filing of the note of issue that discovery was complete, therefore, was materially incorrect. Plaintiff argues that the note of issue was filed pursuant to a February 20, 2020 status conference order. This argument is unavailing. Plaintiff certified that all discovery is complete in his filing of the note of issue, while fully aware that discovery was not complete. The status conference order dated February 20, 2020 anticipated that discovery would be complete before the note of issue was filed. That status conference order, further, directed that an IME be conducted and that certain authorizations be provided before the scheduled close of discovery. Plaintiff, in his opposition, offered no explanation for why he did not seek an extension of time to file the note of issue. Plaintiff instead chose to ignore the parties’ outstanding discovery obligations. Defendants fail to offer any substantive arguments why the court should extend the time to file summary judgment motions. That said, the issue is academic inasmuch as the court is here setting a new date for the filing of the note of issue — thereby re-setting the time to file summary judgment motions. Accordingly, it is ORDERED that the portion of the motion by defendants Flushing Commons Property Owner, LLC and Tishman Construction Corporation to vacate the note of issue and certificate of readiness is granted, and that, therefore, the note of issue is hereby vacated and the case stricken from the trial calendar; and it is further ORDERED that, within 30 days from entry of this order, plaintiff shall appear for an independent medical examination limited to plaintiff’s claimed head injuries as set forth in the February 20, 2020 status conference order; and it is further ORDERED that the portion of the motion by defendants Flushing Commons Property Owner, LLC and Tishman Construction Corporation to compel plaintiff to produce discovery demanded in the February 20, 2020 status conference order is granted, and plaintiff is directed to produce said discovery within 30 days of entry of this order; and it is further ORDERED that the full discovery in this matter shall be completed within 120 days from service of a copy of this order with notice of entry; and it is further ORDERED that the parties are directed to file all dispositive motions within 60 days of the filing of the note of issue; and it is further ORDERED that this motion is otherwise denied as academic; and it is further ORDERED that, within 20 days from entry of this order, movant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the Trial Support Office (60 Centre Street, Room 158M), who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further ORDERED that, upon completion of discovery as hereinabove directed, plaintiff shall cause the action to be placed upon the trial calendar by the filing of a new note of issue and certificate of readiness (for which a fee shall be imposed), to which shall be attached a copy of this order [the plaintiff shall move to reinstate the note of issue as provided in Uniform Rule 202.21 (f)]. This constitutes the Decision and Order of the court. Dated: December 23, 2020
