Slovney v. Nasso

Slovney v Nasso (2017 NY Slip Op 06396)

Slovney v Nasso

2017 NY Slip Op 06396

Decided on August 30, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.

2016-10448
(Index No. 100330/14)

[*1]Estella Slovney, appellant,

v

Mary A. Nasso, etc., et al, respondents (and a third party action).

Lutfy & Santora, Staten Island, NY (James L. Lufty of counsel), for appellant.

Amabile & Erman, P.C., Staten Island, NY (Stephanie M. Berger of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for dental malpractice and lack of informed consent, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated August 12, 2016, as denied her motion to vacate the note of issue and certificate of readiness.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion to vacate the note of issue and certificate of readiness is granted.

Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669).

Here, the plaintiff's certificate of readiness stated, inter alia, that necessary discovery had not been completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity (see 22 NYCRR 202.21[b], [e]; Furrukh v Forest Hills Hosp., 107 AD3d at 669; Dutchess Truck Repair, Inc. v Boyce, 120 AD3d 543, 545; cf. Garofalo v Mercy Hosp., 271 AD2d 642, 642).

Moreover, 22 NYCRR 202.21(e) provides, in pertinent part, that, within 20 days after service of a note of issue and certificate of readiness, a court may grant a party's motion to vacate the note of issue "upon affidavit showing in what respects the case is not ready for trial" and if "the certificate of readiness fails to comply with the requirements of this section in some material respect." Here, the plaintiff moved to vacate the note of issue within 20 days, submitting an affidavit in support thereof demonstrating that the case was not ready for trial. Among other things, the plaintiff demonstrated that substantial discovery remained outstanding, including depositions of the parties. Under these circumstances, the plaintiff's unopposed motion to vacate the note of issue within 20 days should have been granted (see Singh v CBCS Constr. Corp., 137 AD3d 1250).

MASTRO, J.P., RIVERA, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court