| Ikeda v Tedesco |
| 2010 NY Slip Op 01283 [70 AD3d 1498] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Patricia Ikeda, Appellant, v Danielle M. Tedesco et al.,Respondents. |
—[*1] Goldberg Segalla LLP, Syracuse (Lisa M. Robinson of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Romano, J.),entered September 22, 2008 in a personal injury action. The order, among other things, grantedthose parts of defendants' motion to strike the note of issue and certificate of readiness and for anaward of attorney fees.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the third ordering paragraph and as modified the order is affirmed without costs, and thematter is remitted to Supreme Court, Oneida County, for further proceedings in accordance withthe following memorandum: Plaintiff commenced this action seeking damages for injuries shesustained when the vehicle she was driving was struck by a vehicle driven by defendant DanielleM. Tedesco and owned by defendant James R. Tedesco. On July 23, 2008, Supreme Courtgranted defendants' motion to compel plaintiff to provide a duly executed release permittingdefendants to obtain various records and documents from the litigation files of plaintiff's counselthat were acquired and maintained in the course of a prior personal injury action. That same day,but before complying with the order to provide the release, plaintiff filed a note of issue andcertificate of readiness, certifying therein that "[t]here are no outstanding requests for discovery."
Defendants moved to strike the note of issue and certificate of readiness inasmuch asplaintiff had not provided the release, and they requested an award of sanctions, attorney feesand the costs associated with their instant motion. The court granted defendants' motion to theextent that it struck the note of issue and certificate of readiness and awarded defendants $500"for the attorney fees incurred [by them] in bringing their motion."
We reject plaintiff's contention that, pursuant to CPLR 3402, a party may file a note of issueand certificate of readiness "at any time after issue is first joined." Pursuant to 22 NYCRR202.21 (a) and (b), a properly filed note of issue must be accompanied by a certificate ofreadiness, and there must be "no outstanding requests for discovery" (22 NYCRR 202.21 [b][8]). Here, plaintiff filed the note of issue and certificate of readiness before she had provided therelease in accordance with the [*2]order granting defendants'motion to compel her to do so. Thus, the court properly granted that part of defendants' motion tostrike the note of issue and certificate of readiness (see 22 NYCRR 202.21 [e]). Weagree with plaintiff, however, that the court erred in failing to comply with 22 NYCRR 130-1.2in imposing the attorney fees as a sanction inasmuch as the court failed to set forth in a writtendecision "the conduct on which . . . the imposition [of sanctions] is based, thereasons why the court found the conduct to be frivolous, and the reasons why the court found theamount . . . imposed to be appropriate" (see Leisten v Leisten, 309 AD2d1202, 1203 [2003]; see also Campbell vObear, 26 AD3d 877, 878 [2006]). We therefore modify the order by vacating theaward of attorney fees, and we remit the matter to Supreme Court for compliance with 22NYCRR 130-1.2. Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.