OLIVER v. Verizon New York, Inc., respondent. (2009)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Murphy, J.), entered August 20, 2008, which denied their motion to extend the time to file a note of issue.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the plaintiffs' motion to extend the time to file a note of issue is granted, and the plaintiffs shall file their note of issue within 30 days of service upon them of a copy of this decision and order.

In this personal injury action, the Supreme Court issued an order dated March 12, 2008, which certified the matter as ready for trial and directed the plaintiffs to file a note of issue within 90 days. On June 11, 2008, one day after that 90-day period expired, the plaintiffs moved to extend the time to file their note of issue until September 11, 2008. Although the depositions of all parties had been held, the infant plaintiff had yet to appear for a physical examination requested by the defendant Verizon New York, Inc. (hereinafter Verizon). Counsel for the plaintiffs explained that the infant plaintiff could not attend the physical examination because the infant plaintiff was in a juvenile detention facility. At the time that the motion was made, the plaintiff mother had not cooperated with her attorney in providing the name of the juvenile detention facility housing the infant plaintiff. Only one of the remaining defendants, Verizon, opposed the motion. The Supreme Court denied the plaintiffs' motion, and the plaintiffs now appeal, with no brief having been filed by any of the defendants.

Pursuant to CPLR 2004, “(e)xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” It is within the discretion of the Supreme Court whether to grant such an extension of time (see Carota v. Massapequa Union Free School Dist., 272 A.D.2d 428, 708 N.Y.S.2d 340).

When the Supreme Court has issued a certification order requiring a plaintiff to serve a note of issue within 90 days pursuant to CPLR 3216, in order to comply with that notice, a plaintiff must either timely file the note of issue or move for an extension of time to file the note of issue pursuant to CPLR 2004 (see Builders Mechanic Co. v. Claiborne, 277 A.D.2d 193, 715 N.Y.S.2d 871). In considering a CPLR 2004 application to extend the time to file a note of issue, the Supreme Court can consider the length of the delay in making the application, the reason for the delay, and any prejudice to be caused to the opposing party (see Dhaliwal v. Long Boat Taxi, 305 A.D.2d 449, 758 N.Y.S.2d 819).

Although, as here, a certification order which directs the plaintiff to file a note of issue within 90 days has the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Shcherbina v. Queens Nassau Nursing Home, Inc., 66 A.D.3d 869, 886 N.Y.S.2d 620; Louis v. MTA Long Is. Bus Co., 44 A.D.3d 628, 848 N.Y.S.2d 177), the Supreme Court improvidently exercised its discretion in denying the plaintiffs' motion to extend the time to file the note of issue. The plaintiffs showed good cause for being unable to certify that all discovery was complete given the infant plaintiff's detention in a juvenile detention facility, which caused her to be unable to attend the physical examination requested by Verizon (see CPLR 2004; Cook v. City of New York, 11 A.D.3d 424, 782 N.Y.S.2d 375; cf. Carota v. Massapequa Union Free School Dist., 272 A.D.2d 428, 708 N.Y.S.2d 340). Moreover, the plaintiffs' motion was filed only one day after the 90-day period within which to file the note of issue had expired, and the papers submitted by Verizon, the only defendant opposing the motion, were devoid of any claim that it would suffer any prejudice if the motion was granted (cf. Dhaliwal v. Long Boat Taxi, 305 A.D.2d 449, 758 N.Y.S.2d 819).