Doreen D. Gallo, respondent, v. SCG

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

Doreen D. Gallo, respondent, v. SCG Select Carrier Group, L.P., et al., appellants, et al., defendants.

2011–03764 (Index No. 3149/08)

Decided: January 17, 2012

DANIEL D. ANGIOLILLO, J.P. ANITA R. FLORIO JOHN M. LEVENTHAL PLUMMER E. LOTT, JJ. LeClair Ryan, New York, N.Y. (Anthony S. McCaskey and Sarah K. Hook of counsel), for appellants. Manuel A. Romero, P.C., Brooklyn, N.Y. (Jonathan M. Rivera of counsel), for respondent.

Submitted—January 4, 2012

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants SCG Select Carrier Group, L.P., Antonio F. Fernando, and Eagle Global Logistics (EGL, Inc.), appeal from an order of the Supreme Court, Kings County (Rothenberg, J.), dated March 3, 2011, which denied their motion to strike the note of issue and to compel the plaintiff to provide certain disclosure.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants SCG Select Carrier Group L.P., Antonio F. Fernando, and Eagle Global Logistics (EGL, Inc.), to strike the note of issue and to compel the plaintiff to provide certain disclosure is granted.

The appellants timely moved, inter alia, to strike the note of issue within 20 days of its service (see 22 NYCRR 202.21[e] ), and clearly demonstrated that the plaintiff's certificate of readiness contained misstatements concerning the status of discovery.   Since the appellants made a clear showing that discovery was not complete and that the case was not ready for trial, the Supreme Court should have granted their motion to strike the note of issue and to compel the plaintiff to appear for a neurological examination (see 22 NYCRR 202.21 [e];  Brown v. Astoria Fed. Sav., 51 AD3d 961, 962;  Gregory v. Ford Motor Credit Co., 298 A.D.2d 496, 497;  Drapaniotis v. 36–08 33rd St. Corp., 288 A.D.2d 254;  Spilky v. TRW, Inc., 225 A.D.2d 539, 540).

ANGIOLILLO, J.P., FLORIO, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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