Newfeld v. Midwood Ambulance & Oxygen Serv., Inc.

204 A.D.3d 815

164 N.Y.S.3d 494 (Mem)

Shelley NEWFELD, etc., respondent,

v.MIDWOOD AMBULANCE & OXYGEN SERVICE, INC., et al., appellants.

2020–06961

Index No. 509889/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 1, 2022

April 13, 2022

Cascone & Kluepfel, Garden City, NY (Howard B. Altman of counsel), for appellants.

Burns & Harris, New York, NY (Judith F. Stempler of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Lizette Colon, J.), dated August 24, 2020. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment, which had been determined in an order of the same court dated February 7, 2020.

ORDERED that the order dated August 24, 2020, is reversed insofar as appealed from, on the law, with costs, those branches of the defendants’ motion which were for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment are granted, and, upon renewal, so much of the order dated February 7, 2020, as determined those branches of the prior motion which were to vacate the note of issue and certificate and readiness and extend the time to move for summary judgment is vacated, those branches of the prior motion are thereupon granted, and the matter is remitted to the Supreme Court, Kings County, for the selection of a new date by which summary judgment motions shall be filed.

The underlying facts for this action can be found in our decision on a related appeal decided herewith (see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc ., ––– A.D.3d ––––, 164 N.Y.S.3d 497 [Appellate Division Docket No. 2019–13509, decided herewith] ). In that decision and order, we are affirming the Supreme Court's order granting the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defenses alleging comparative negligence. The instant appeal involves the parties’ later readiness for trial and the time for the defendants to move for summary judgment on the issue of whether the plaintiff or Eric Lewis sustained a serious injury within the meaning of Insurance Law § 5102(d).

On December 31, 2019, the plaintiff filed a note of issue and certificate of readiness. By notice of motion dated January 8, 2020, the defendants moved (1) to vacate the note of issue and certificate of readiness, (2) to extend the time to move for summary judgment, and (3) to direct the plaintiff to comply with outstanding discovery, including that the plaintiff appear for independent medical examinations. In an order dated February 7, 2020, the Supreme Court directed the plaintiff to comply with the defendants’ outstanding discovery demands and, in effect, extended the deadline to move for summary judgment until March 1, 2020. The court, however, denied that branch of the defendants’ motion which was to vacate the note of issue and certificate of readiness.

Thereafter, the defendants moved for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment, asserting,...