Opinion
502209/18
07-03-2019
Merna SHAWER, Plaintiff, v. ELRAC LLC, and Hazel Salinas and Richard ‘Doe’, Defendants.
Attorney for Plaintiff, Thomas D. Wilson, P.C., 186 Montague Street, 4th Floor, Brooklyn, NY 11201, (718) 875-0021 Attorney for Defendants, Edward J. Savidge,Rankin Savidge PLLC, 1527 Franklin Avenue, Suite 105, Mineola, NY 11501, (516) 208-1640
Attorney for Plaintiff, Thomas D. Wilson, P.C., 186 Montague Street, 4th Floor, Brooklyn, NY 11201, (718) 875-0021
Attorney for Defendants, Edward J. Savidge,Rankin Savidge PLLC, 1527 Franklin Avenue, Suite 105, Mineola, NY 11501, (516) 208-1640
Francois A. Rivera, J.
By notice of motion filed on January 8, 2019, under motion sequence five, defendants Elrac LLC. (hereinafter Elrac) and Hazel Salinas (hereinafter Salinas) (hereinafter collectively as movants) moved for an order: (1) vacating the plaintiff Merna Shawer's note of issue due to outstanding discovery; (2) or in the alternative, to compel the completion of discovery and extend defendant's time to move for summary judgment. Plaintiff opposes the motion.
Hazel Salina is sued herein as Salinas.
Notice of Motion
Affirmation in Support
Exhibits A to J
Affirmation in Opposition
Reply Affirmation
BACKGROUND
On February 2, 2018, plaintiff Merna Shawer (hereinafter Shawer or plaintiff) commenced the instant action for damages for personal injury against defendants Elrac, Salinas and Richard Doe by filing a summons and complaint with the Kings County Clerk's Office (hereinafter KCCO). On March 1, 2018, Elrac and Salinas joined issue by filing an answer with the KCCO. On December 27, 2018, plaintiff filed the note of issue. Plaintiff's complaint and verified bill of particulars allege the following salient facts. On December 2, 2017, a vehicle operated by Richard Doe, rented by Salinas, and owned by Elrac collided with a vehicle operated by the plaintiff in the vicinity of Crospey Avenue on the Westbound direction of the Belt Parkway. Plaintiff claims that the subject accident caused her to sustain serious injuries and was due to Richard Doe's negligent operation of his vehicle.
On February 1, 2019, the movants jointly filed a motion for summary judgment, under motion sequence six, seeking dismissal of plaintiff's complaint on the basis that Shawer has not suffered a serious injury as defined in Insurance Law § 5102 (d) ; and dismissal as to Elrac pursuant to the Graves Amendment. By decision and order, the Court granted summary judgment on the branch of the movants motion seeking dismissal as against Elrac under the Graves Amendment and denied the branch of motion seeking dismissal on the serious injury threshold issue.
LAW AND APPLICATION
In the instant motion, the movants contend that the note of issue should be vacated due to outstanding discovery. Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure ( Khan v. Macchia , 165 AD3d 637, 638 [2nd Dept 2018] ). The first method, pursuant to Uniform Rules for Trial Courts § 202.21(e) ( 22 NYCRR 202.21 [e] ), provides, in pertinent part, that:
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 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.
The second method, pursuant to Uniform Rules for Trial Courts § 202.21 (d), provides, in pertinent part, that:
Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.
Here, the movants application was filed within twenty days of the filing of the note of issue, therefore, the Court will apply the analysis pursuant to 22 NYCRR 202.21 (e).
In opposition to the motion, plaintiff avers that discovery is not outstanding due to Shawer's compliance with substantially all of the movants' discovery demands and all prior court orders pertaining to discovery. At oral argument, the movants contended that although some of the demanded discovery had been provided that the authorizations were defective and that plaintiff had failed to respond to the demand for legal files of counsel regarding an accident that took place on March 17, 2015.
There is no dispute that, but for the request for the legal file, all discovery demands were responded to. Nevertheless, the plaintiff is directed to provide HIPAA compliant authorizations, regarding the no-fault file for the March 17, 2015 accident, as well as, any medical and surgical records for the March 17, 2015 accident, within thirty (30) days of notice of entry of the instant order.
Attorney Work File
With respect to the request for plaintiff's counsel's legal file of the accident of March 17, 2015, the following principles apply. It is well established that the work of an attorney in preparation for trial of an action may be immune from discovery (see Markel v. Pure Power Boot Camp, Inc., 171 AD3d 28 [1st Dept 2019] ). However, not all that finds its way into a lawyer's files enjoys such immunity ( Roach v. City of Albany , 282 AD 807 [3rd Dept 1953] ). Discovery of such items is proper upon a showing that relevant and non-privileged facts are essential to the preparation of a proponent's case (see Markel, 171 AD3d 28 ; see also Roach , 282 AD 807 ).
In the instant case, the movants have not demonstrated that the non-privileged legal file is essential to the movants' defense. This is regardless of the plaintiff's failure to respond to the request. Therefore, the request for plaintiff's non-privileged legal file by plaintiff's counsel regarding the March 17, 2015 accident is denied without prejudice to the making of a proper showing.
Extension of Summary Judgment Deadline
A party may not file a late summary judgment motion without leave of the court "on good cause shown" ( CPLR 3212 [a] ), which requires the movant to articulate a "satisfactory explanation for the untimeliness" of the motion ( Bargil Assoc., LLC v. Crites ––– NYS3d ––––, 2019 NY Slip Op 04903 [2nd Dept 2019] quoting Brill v. City of New York , 2 NY3d 648, 652 [2004] ). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment ( Bivona v. Bob's Discount Furniture of NY, LLC , 90 AD3d 796, 796 [2nd Dept 2011] ).
Here, the Court finds that, but for, the aforementioned defects, discovery is complete. Although the instant motion for an extension was made on January 8, 2019, there is no dispute that the movants were successfully able to file their summary judgment motion timely. The Court finds, therefore, that the branch of the instant motion seeking an extension has been rendered moot. The motion to extend their time to move for summary judgment is denied as academic, but it is without prejudice for an order to extend their time to move for summary judgment upon a showing of "good cause" (see Brill at 2 NY3d at 652 ).
CONCLUSION
The motion of defendants Elrac LLC. and Hazel Salinas for an order to vacate the plaintiff Merna Shawer's note of issue due to outstanding discovery is denied.
The motion of defendants Elrac LLC. and Hazel Salinas for an order to compel the completion of discovery is granted to the extent that plaintiff Merna Shawer is directed to correct the defective authorizations within thirty (30) days of notice of entry of the instant order.
The motion of defendants Elrac LLC. and Hazel Salinas for an order to extend their time to move for summary judgment is denied without prejudice.
The foregoing constitutes the decision and order of this Court.