Ehrlich v. Sanchez

Ehrlich v Sanchez

2024 NY Slip Op 34382(U)

December 17, 2024

Supreme Court, New York County

Docket Number: Index No. 151291/2021

Judge: Adam Silvera

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 151291/2021

NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 12/17/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. ADAM SILVERA PART 01M

Justice

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INDEX NO. 151291/2021

STEPHEN EHRLICH,

06/28/2022,

Plaintiff, MOTION DATE 09/28/2022

- V -

MOTION SEQ. NO. 001 003

EDUARDO S. SANCHEZ, PV HOLDING CORP., AVIS

BUDGET GROUP, INC. DECISION + ORDER ON

MOTION

Defendant.

------------------------------------ ----------------------------------------X

The following e-filed documents, listed by NYSCEF document number {Motion 001 ) 19, 20, 21 , 22, 23,

24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 107

VACATE/STRIKE - NOTE OF ISSUE/JURY

were read on this motion to/for DEMAND/FROM TRIAL CALENDAR

The following e-filed documents, listed by NYSCEF document number {Motion 003) 89, 90, 91 , 92, 93,

99, 100, 101 , 102, 108, 109, 110

VACATE/STRIKE - NOTE OF ISSUE/JURY

were read on this motion to/for DEMAND/FROM TRIAL CALENDAR

Upon the foregoing documents and for the reasons set forth below, the Court denies the

motion by defendant, Eduardo S. Sanchez ("Defendant"), to strike the note of issue filed by

plaintiff, Stephen Ehrlich ("Plaintiff'), and denies Plaintiffs motion for sanctions against

Defendant. 1

I. Motion to Strike the Note of Issue

A party seeking to strike a note of issue may move to do so, as of right, " [w ]ithin 20 days

after service of [the] note of issue and certificate of readiness"; after the 20-day period, a party

must show "good cause" to strike. Uniform Civil Rules for the Supreme Court and the County

Court (22 NYCRR) § 202.21 (e ). The court may strike "the note of issue if it appears that a

1

For purposes of this Decision and Order, the Court considers and decides motion sequence 00 I together with this

motion sequence 003, as both motions seek identical relief.

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material fact in the certificate ofreadiness is incorrect," if the certificate ofreadiness does not

comply with the requirements of 22 NYCRR § 202.21, or if the case is otherwise not "ready for

trial." Id. ; see also, e.g., Frierson v Concourse Plaza Assoc., 189 AD2d 609, 610 (1st Dep't

1993) (holding that a note of issue was premature when discovery was still outstanding); Barnett

v. DeMian, 207 AD2d 693,693 (1st Dep't 1994) (same). If the court does not strike the note of

issue, it may nevertheless permit further discovery "so long as neither party will be prejudiced."

Cuprill v Citywide Towing & Auto Repair Servs., 149 AD3d 442,443 (1st Dep't 2017).

Here, Defendant does not argue that he timely filed a motion to vacate the note of issue

through his current counsel. See Affirmation in Support, dated Sept. 28, 2022, 11 17-22.2 Instead,

Defendant argues that Plaintiff has not provided enough access to medical records that are

relevant for assessing damages. Id. 122. Defendant seeks an order compelling Plaintiff to

provide the outstanding discovery, pursuant to CPLR § 3124, in the event that the Court does not

strike the note of issue.

Plaintiff, on the other hand, argues that he notified Defendant when he would be filing

the note of issue and that Defendant seemingly did not object. See Affidavit in Opposition to

Motion to Strike Note oflssue and for Sanctions Pursuant to Uniform Rule 130 ("Plaintiff's

Original Opposition") 1 8. Further, Plaintiff claims that he addressed Defendant's outstanding

discovery demands before filing the note of issue. Id. But that is not so. Defendant had requested

unrestricted access to certain medical information. See Demand for Authorization to Obtain the

Records and Films from Lenox Hill Radiology at 1. Plaintiff's authorizations provided only

limited access to information, mostly about Plaintiff's knees. See Plaintiff's Response to

2

To be sure, Defendant suggests that his original motion (motion sequence 00 I) was timely filed. See id ~ 14. The

Court does not delve into this issue, as resolution of the issue would not change the relief that the Court grants

herein.

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Defendants' Demand for Authorization to Obtain the Records and Films from Lenox Hill

Radiology ,r,r 1, 3-5, 7-8. Also noteworthy and undisputed is that Plaintiff filed the note of issue

without court order, as required by the case scheduling order. See Case Scheduling Order, dated

August 3, 2021, ,r 12.

Still, this Court declines to strike Plaintiffs note of issue. Instead, within 14 days of this

Decision and Order, Plaintiff must provide Defendant, through current counsel authorizations-

not limited only to Plaintiff's knees but rather including all body parts at issue in this case- to

the complete medical records, radiological films, and surgical intra-operative photographs from

the following sources:

• Lenox Hill Radiology & Medical Imaging Associates

• Hospital for Special Surgery

• East River Imaging

• RYC Orthopedics

• Dr. Donald Rose

• Dr. David Altcheck

• Dr. Steven Hass

• Dr. Martin O'Malley

This ensures that Defendant obtains access to relevant records, that Plaintiff is not prejudiced,

and that this case moves on expeditiously. Thus, the Court denies Defendant's motion to strike

the note of issue but orders further discovery as detailed above.

II. Sanctions

A court may impose sanctions on a party or an attorney "who engages in frivolous

conduct." Rules of the Chief Administrator of the Courts (22 NYCRR) § 130- 1.1 (a). Frivolous

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conduct includes the use of dilatory tactics, the use of meritless tactics, and lying. Id. § 130-

1.1 (c ). In other words, to warrant sanctions, a party must engage in "extreme behavior." Hunts

Point Term. Produce Coop. v New York City Economic Dev. Corp., 54 AD3d 296,296 (1st Dep't

2008). In determining whether conduct is frivolous, and therefore to award sanctions, the court

should carefully consider the context in which the conduct occurs. 22 NYCRR § 130-1.1 (c).

In Plaintiff's reply to the motion to strike the note of issue by Defendant's first counsel,

Plaintiff cross-moved for sanctions against Defendant, for allegedly misleading both the Court

and Plaintiff about Defendant's legal representation and for not withdrawing the motion to strike.

See Plaintiff's Original Opposition at 2, 6-7. Defendant' s motion to strike the note of issue, and

its decision to not withdraw the motion, was far from frivolous. Plaintiff has not shown that

Defendant's motion to strike was wholly without merit or that Defendant lied or improperly

delayed this litigation. In short, Plaintiff has not shown that Defendant engaged in such "extreme

behavior" as to warrant sanctions. Hunts Point, 54 AD3d at 296. Thus, Plaintiff's motion for

sanctions must be denied.

Accordingly, it is

ORDERED that Defendant's motion to strike is denied; and it is further

ORDERED that Plaintiff shall provide Defendant, through current counsel, with the

authorizations listed above within 14 days; and it is further

ORDERED that within 14 days of entry, Defendant shall serve a copy of this

Decision/Order upon Plaintiff with notice of entry.

This constitutes the Decision/Order of the Court.

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12/17/2024

DATE ADAM SILVERA, J.S.C.

CHECK ONE:

CASE DISPOSED ~ NON-FINAL DISPOSITION

0

□

GRANTED DENIED GRANTED IN PART OTHER

APPLICATION : SETTLE ORDER SUBMIT ORDER

□

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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