Torres v Saint Vincents Catholic Med. Ctrs.

2010 NY Slip Op 02128 [71 AD3d 873]

March 16, 2010

Appellate Division, Second Department

As corrected through Wednesday, April 28, 2010

Joseph M. Torres, Jr., Appellant, v Saint Vincents CatholicMedical Centers et al., Respondents.

—[*1]Everett J. Petersson, P.C., Brooklyn, N.Y., for appellant.

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Siegal, J.), entered September 30, 2009, which granted thatbranch of the defendants' motion which was to strike the action from the trial calendar and tovacate the note of issue and certificate of readiness.

Ordered that the order is affirmed, with costs.

A motion to vacate the note of issue and certificate of readiness made more than 20 daysafter their filing will be granted only where "a material fact in the certificate of readiness isincorrect" or upon "good cause shown" (22 NYCRR 202.21 [e]; see Ferraro v North Babylon Union FreeSchool Dist., 69 AD3d 559, 560 [2010]). To satisfy the requirement of "good cause,"the party seeking vacatur must "demonstrate that unusual or unanticipated circumstancesdeveloped subsequent to the filing of the note of issue and certificate of readiness requiringadditional pretrial proceedings to prevent substantial prejudice" (Utica Mut. Ins. Co. v P.M.A. Corp., 34AD3d 793, 794 [2006]; see Ferrarov North Babylon Union Free School Dist., 69 AD3d 559 [2010]; White v Mazella-White, 60 AD3d1047, 1049 [2009]; Audiovox Corp. v Benyamini, 265 AD2d 135, 139-140 [2000]).Under the circumstances presented, the Supreme Court providently exercised its discretion inconcluding that this standard was met, and in granting that branch of the defendants' motionwhich was to strike the action from the trial calendar and to vacate the note of issue andcertificate of readiness, in effect, to permit the defendants to conduct independent medicalexaminations of the plaintiff (seeCongregation Yetev Lev D'Satmar, Inc. v 26 Adar N.B. Corp., 32 AD3d 376 [2006]).Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ., concur.