OWENS v. Carl A. Samuels et al., Defendants. (2025)

Order, Supreme Court, New York County (Richard A. Tsai, J.), entered on or about April 18, 2025, which denied the motion of defendants the Metropolitan Transportation Authority, the New York City Transit Authority, and Javelle M. Woods (collectively Transit) to vacate the note of issue, unanimously affirmed, without costs.

In moving to vacate the note of issue within 20 days after its service, Transit was required only to show that “a material fact in the certificate of readiness [was] incorrect” (22 NYCRR 202.21[e]).  We review the motion court's order under an abuse of discretion standard (see Oldcastle Precast, Inc. v. Steiner Bldg. NYC, LLC, 224 A.D.3d 413, 413, 202 N.Y.S.3d 340 [1st Dept. 2024]).

Transit contends that plaintiff's statement in the certificate of readiness that his independent medical exams (IMEs) were “completed” was an incorrect material fact that warranted vacating the note of issue.  Although plaintiff's statement in the certificate of readiness was incorrect, the error was not material within the context of this case.  The motion court held that Transit waived the right to have plaintiff appear for IMEs when Transit missed three court-ordered deadlines to do so, and the court's decision is entitled to deference (see Mateo v. City of New York, 282 A.D.2d 313, 314, 723 N.Y.S.2d 362 [1st Dept. 2001]).  That plaintiff should have stated that the IMEs were “waived” instead of “completed” is a matter of semantics under the circumstances of this case because in either event there was no outstanding discovery (see Tomaino v. 209 E. 84 St. Corp., 68 A.D.3d 527, 528, 891 N.Y.S.2d 51 [1st Dept. 2009]).

We decline to relieve Transit of the effect of its waiver based on a lack of prejudice to plaintiff.  Contrary to Transit's assertion, Transit did not seek only “a short extension of time to conduct” the IMEs (Smith v. Mousa, 305 A.D.2d 313, 313, 759 N.Y.S.2d 482 [1st Dept. 2003]).  To the contrary, Transit eventually scheduled the IMEs on dates approximately one year after the original note of issue deadline, and this delay was attributable to Transit (cf.  Pickering v. Union 15 Rest. Corp., 107 A.D.3d 450, 450, 966 N.Y.S.2d 431 [1st Dept. 2013]).