A deposition of plaintiff was taken on July 16, 2020. According to plaintiff's counsel, the verified bill of particulars and responses to defendants' demand for disclosure were sent by email on May 1, 2020, because, at that time, plaintiff's counsel was working remotely due to the COVID-19 pandemic. Going forward the correct email recipient on this one will be attorney James Taylor of our office," and included Attorney Taylor's email address. Plaintiff also furnished an email response sent later that same day by defendants' counsel, which states, "Thanks Robert/Cassandra. In response to the motion, plaintiff furnished, among other items, plaintiff's verified bill of particulars, response to defendants' demand for discovery and demand for a verified bill of particulars, along with an email dated May 1, 2020, from plaintiff's counsel to defendants' counsel, transmitting these documents. Plaintiff further asserts that there was no willful failure to comply with defendants' discovery demands. In opposition, plaintiff contends that defendants waived their right to conduct an independent medical examination and that no discovery was outstanding when plaintiff filed the note of issue. In addition, defendant contends that plaintiff failed to appear for an independent medical examination. Defendants contend that the note of issue and certificate of readiness for trial should be vacated because plaintiff has failed to serve responses to defendants' demand for a bill of particulars and demand for discovery and has not objected to the demands or moved for a protective order. On December 1, 2020, plaintiff filed a note of issue and certificate of readiness for trial. On that same date, defendants also furnished responses to plaintiff's notice to produce. On or about February 4, 2020, defendants served an answer to the complaint, along with a demand for bill of particulars, demand for ad damnum, demand for discovery, notice of revocation of service by electronic means and notice to take deposition upon oral examination. Oral argument was conducted virtually, via Microsoft Teams, on January 8, 2021. Kazukenus, Esq., dated December 29, 2020, with exhibits, in opposition to the motion. Taylor, Esq., dated December 21, 2020, with exhibits, in support of the motion, and the affirmation of Cassandra A. In deciding the motion, the Court has reviewed and considered the following: the affirmation of James D. This is an action for personal injuries arising out of a motor vehicle accident which occurred in the early morning hours on September 30, 2017, on Southwestern Avenue in the City of Glens Falls.ĭefendants move for an order, pursuant to Uniform Rule § 202.21, vacating the note of issue and certificate of readiness for trial and striking the matter from the trial calendar, or, in the alternative, an order, pursuant to CPLR 3126, striking plaintiff's complaint, or, in the alternative, an order, pursuant to CPLR 3126, precluding plaintiff from offering testimony at trial. Martin, Harding & Mazzotti, LLP, Albany (Cassandra A. This opinion is uncorrected and will not be published in the printed Official Reports.Įrin P. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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