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In an action to recover damages for personal injury

In an action to recover damages for personal injury, the complaint was filed by Raul Montanez against Jeffrey M. Brown Associates, Inc. (Brown), by order that action was consolidated with the action commenced by Raul Montanez against the remaining defendants. The complaints assert causes of action for common law negligence and violation of Labor Law §§200, 240, 241(6) and the Industrial Code of the State of New York 12 NYCRR §23-1.7(b)(1). This action arises out of an incident which occurred on August 1, 2005 wherein the plaintiff sustained injuries while working on a construction worksite and was caused to fall as a result of an open, loose and/or unsecure manhole cover and for which personal injuries the plaintiff seeks monetary damages. The defendant/third-party plaintiff Jeffrey M. Brown Associates, Inc. impleaded Wynne Management, the plaintiff’s employer on the date of the accident, by commencing a third-party action for common law indemnification, contractual indemnification, breach of agreement, and judgment over against the third-party defendant.
In cross-motion, the defendants GMH Military Housing-Navy Northeast, LLC, GMH Military Housing Management, GMH Northeast Housing Design/Build, LLC, Northeast Housing LLC, Centex Construction, LLC, and Balfour Beatty Const, seek an order pursuant to 22 NYCRR §202.21(e)vacating the Note of Issue and Certificate of Readiness.

In a cross-motion, plaintiff seeks an order pursuant to CPLR 3403(a)(3) granting him a trial preference in the interests of justice. In cross-motion, defendants GMH Military Housing-Navy Northeast, LLC, GMH Military Housing Management, GMH Northeast Housing Design/Build, LLC, Northeast Housing LLC, Centex Construction, LLC, and Balfour Beatty Const, seek an order, in part, pursuant to CPLR 202.25(a) denying the plaintiffs application for a special preference. Similarly, defendant/third party plaintiff Jeffrey M. Brown Associates, Inc. seeks an order pursuant to CPLR Article 34 denying a special trial preference to the plaintiff.
The issues in this case are whether an order vacating the Note of Issue and Certificate of Readiness is proper; and whether plaintiff Raul Montanez is entitled to the grant of a trial preference in the interest of justice.

The Court said that, in their cross-motion, the defendants GMH, among others, seek an order pursuant to 22 NYCRR §202.21(e) vacating the Note of Issue and Certificate of Readiness.
The Court held that, 22 NYCRR §202.21(e) provides that: a motion to vacate the note of issue for lack of readiness must be filed within twenty days of the note being filed. The instant motion was served by the defendants on December 18, 2009. The Note of Issue and Certificate of Readiness were filed with this Court on December 3, 2009. Accordingly, defendants’ motion to vacate the Note of Issue is timely in that it has been brought within twenty days of the filing of the Note of Issue. When a party moves to vacate the note of issue within twenty days following service of the same, 22 NYCRR 202.21 (e) provides that the court may grant vacate upon a showing that the case is not ready for trial and a material fact in the certificate of readiness is incorrect.

Defendants argues that by orders dated September 22, 2009 and November 24, 2009, the plaintiff was ordered to produce several authorizations and W-2’s/1040’s for two years prior to the alleged incident by December 24, 2009, and that this discovery is outstanding.

However, in reviewing the order dated September 22, 2009, the defendants did not set forth the health care providers for whom they sought authorizations and do not set forth the names of those providers in the supporting affirmation. Pursuant to the order dated November 24, 2009, the plaintiff was to provide authorizations for Drs. Avella, McCord, Peterman and Dr. Eiser, as well as W2’s and/or 1040’s for two years prior to the incident by December 24, 2009.
By way Response to the Demand for Authorizations, the plaintiff has demonstrated that authorizations dated April 30, 2009 have been provided for the requested items. By way of a letter dated December 23, 2009, the plaintiff provided authorizations permitting the defendants to obtain copies of plaintiffs W2’s/1040’s for the years 2003, 2004 and 2005. Therefore, the defendants’ baseless claim that the plaintiff has not supplied the aforementioned authorizations is belied by the evidentiary submissions. No basis to vacate the Note of Issue has been demonstrated.

Based upon the foregoing, it is determined that there is no basis for the Note of Issue and Certificate of Readiness to be vacated in that there is no showing that a material fact in the Certificate of Readiness is incorrect as it has been demonstrated that the outstanding discovery has been previously provided to the defendants.

Accordingly, that part of motion wherein the defendants GMH Military Housing-Navy Northeast, LLC, GMH Military Housing Management, GMH Northeast Housing Design/Build, LLC, Northeast Housing LLC, Centex Construction, LLC, and Balfour Beatty Const, seek an order vacating the Note of Issue and Certificate of Readiness is denied.

On the matter of trial preference, the Court said that, plaintiff seeks an order pursuant to CPLR 3403(a)(3) granting him a trial preference in the interests of justice. Defendants, on the other hand filed their respective counter-motions seeking to deny plaintiff’s application.
22 NYCRR §202.24 refers to CPLR 3403 (a) (3), which provides that a trial preference may be granted in an action “in which the interests of justice will be served by an early trial. Pursuant to section (b), “unless the court otherwise orders, notice of a motion for preference shall be served with the note of issue by the party serving the note of issue, or ten days after such service by any other party” The court’s computer indicates that the Note of Issue was filed on December 3, 2009. The motion for the preference was served January 26, 2010, and not with the Note of Issue.

In support of his application for a trial preference, the plaintiff claims indigency by submitting an affidavit claiming that he has not returned to work since August 1, 2005 and he receives no social security or disability or public funding. In his deposition transcript, it showed that he applied for social security and disability and was denied. He received an award dated February 4, 2009 from Workmens’ Compensation in the amount of $155,000.00 from which a child support lien in the amount of $30,950.50 was deducted as well as attorneys’ fees, yielding a net of $100,799.50 to him. He claims he has no transportation as he cannot afford a car of insurance. He states he cannot work. He resides with his sister to whom he pays a monthly rent but has been unable to pay for the last six months. Plaintiff does not support his conclusory averments of indigency with copies of bank account statements or an accounting of the $100,799.50 net recovery related to his Workmen’s Compensation award. Here there is no actual proof of his actual fiscal condition and claim of financial hardship.

In addition, plaintiff’s sister, Miriam Montanez, set forth in her affidavit that she owns the house and the plaintiff resides with her, but has been unable to pay the agreed upon rent for six months; that she has financial problems and was served with foreclosure papers on her home. Upon reviewing those papers, however, her name does not appear in the caption and she does not aver that she is known by any other name.

Dr. Paul R. Alongi, M.D. sets forth in his affirmation dated May 4, 2010, that he is an orthopedic surgeon who performed surgery on plaintiff’s back and neck as a result of injuries he sustained when he fell during the accident. He sets forth that plaintiff continues to be totally disabled and unable to work, but without support to this conclusory opinion with a basis. Stating further that the plaintiff has discomfort, pain and impaired function and mobility, however, he does not set forth what the impaired function is or the degree of impaired mobility which renders plaintiff totally disabled.

Based upon the foregoing, it is determined that the plaintiff has not demonstrated entitlement to a trial preference based upon indigency as there has not been a sufficient showing warranting the exercise of discretion in favor of granting the preference.

Accordingly, the cross-motion by the plaintiff for an order pursuant to CPLR 3403(a)(3) granting him a trial preference in the interests of justice is denied; that part of cross-motion by the defendants GMH Military Housing-Navy Northeast, LLC, GMH Military Housing Management, GMH Northeast Housing Design/Build, LLC, Northeast Housing LLC, Centex Construction, LLC, and Balfour Beatty Const, for an order pursuant to CPLR 202.25(a) denying the plaintiffs application for a special preference, and cross-motion by the defendant/third-party plaintiff Jeffrey M. Brown Associates, Inc., for an order pursuant to CPLR Article 34 denying a special trial preference to the plaintiff, have been rendered academic by denial of the preference and are denied as moot.

If you have sustained injuries while working in your employer’s premises, you need the help a Suffolk Injury Attorney and/or Suffolk Personal Injury Attorney to give you advice on the legal remedies that you can avail. Stephen Bilkis and Associates can help you.

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