Opinion
Index No. 606094/2018 Cal No. 201901960MV Mot. Seq. 002 MD003 MD
02-24-2021
PAUL BLOM and COREY BLOM, Plaintiffs, v. DAKOTA MURRAY and CHRISTOPHER MURRAY, Defendants.
ROBINSON & YABLON, P.C. Attorney for Plaintiffs LAW OFFICE OF CHARLES F. HARMS, JR. Attorney for Defendants
Unpublished Opinion
MOTION DATE 2/20/20 (002)
MOTION DATE 10/1/20(003)
ADJ. DATE 10/1/20
ROBINSON & YABLON, P.C. Attorney for Plaintiffs
LAW OFFICE OF CHARLES F. HARMS, JR. Attorney for Defendants
Hon. JOSEPH A. SANTORELLI, Justice
Upon the following papers read on these e-filed motions for summary judgment and for vacatur of the note of issue: Notice of Motion! Order to Show Cause and supporting papers by defendants, filed January 24, 2020: by defendants, filed September 11 2020- Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers by plaintiffs, filed August 27 2020- by plaintiffs, filed September 24. 2020; Replying Affidavits and supporting papers by defendants, filed October, 2020; by defendants, filed October 1, 2020 Other by by plaintiffs, filed August September 1, 2020: by plaintiffs, filed August September 24, 2020; it is
ORDERED that the motion (#001) by defendants Dakota Murray and Christopher Murray for summary judgment, and the motion (#002) by defendants Dakota Murray and Christopher Murray to vacate the note of issue and to strike the action from the trial calendar are consolidated for the purposes of this determination; and it is further
ORDERED that the motion by defendants Dakota Murray and Christopher Murray for summary judgment dismissing the claims asserted by plaintiff Corey Blom against them is denied; and it is further
ORDERED that the motion by defendants Dakota Murray and Christopher Murray to vacate the note of issue and to strike the action from the trial calendar is denied.
This action arises out of a motor vehicle accident that occurred on March 1, 2018, on the Long Island Expressway approximately 500 feet west of Exit 58, in Islandia, New York. The accident allegedly occurred when a vehicle owned and operated by plaintiff Paul Blom, in Which plaintiff Corey Blom was a passenger, was struck in the rear by a vehicle operated by defendant Dakota Murray, and owned by defendant Christopher Murray. With regard to plaintiff passenger, plaintiffs allege that he sustained various injuries and symptoms, all of which are claimed to be permanent and "serious," including traumatically induced arthritic changes to his left knee, disc bulge at L2/L3, subligamentous disc bulge at C3/C4, anxiety, sleep disturbance,, traumatically induced debilitating headaches, and aggravation of a previous asymptomatic and latent shunt implantation, as a result of the accident. Plaintiffs also allege that plaintiff passenger requires future neurosurgery as a result of the accident. According to the Court's computerized records, a compliance conference was held on October 3, 2019. The parties certified the action as ready for trial, and a note of issue and certificate of readiness were filed by plaintiffs on October 7, 2019.
Defendants now move for summary judgment dismissing the claims brought by plaintiff passenger on the ground that he did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the subject accident. In support of their motion, defendants submit, among other things, the transcript of plaintiff passengerss deposition testimony, the affirmed reports of William Healy, III, M.D., and Ali Sadr, M.D., and various medical records and reports. In opposition, plaintiffs argue that triable issues of fact remain as to whether plaintiff passenger sustained a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the subject accident. Plaintiffs contend, among other things, that plaintiff passengerss brain shunt was fractured, and that he requires shunt replacement surgery, as a result of the subject accident. In support of their opposition, plaintiffs submit, among other things, the affirmed report of plaintiff passengerss treating neurosurgeon, Michael Egnor, M.D.
Defendants also move to vacate the note of issue and to strike the action from the trial calendar They argue that plaintiffs' opposition papers to their motion for summary judgment raise new allegations regarding plaintiff passenger's injuries, damages, and potential future surgery? which warrant a further deposition of plaintiff passenger and further independent medical examination. Defendants contend that they had no knowledge of plaintiff passengerss purported new injuries or further treatment until they were served with plaintiffs' opposition papers to their motion. In support of there motion for vacatur of the note of issue, defendants submit among other things, plaintiffs' opposition papers to their motion for
Plaintiffs oppose the motion for vacatur of the note of issue. Plaintiffs contend among other things, that defendants failed to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue. They also argue that they are not claiming that plaintiff passenger sustained new or additional injuries, or that his injuries significantly have changed In support of their opposition, plaintiffs submit, among other things, the transcript of plaintiff passenger's deposition testimony.
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred by the No-Fautt Insurance Law bears the initial burden of establishing, prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Bong An v Villas-Familia, 183 A.D.3d 582, 121 N.Y.S.3d 675 [2d Dept 2020]). Insurance Law S 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismemberment;; significant disfigurement;; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such persons usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.." Findings of a defendant's own witnesses must be in admissible form, such as affidavits and affirmations, and not unworn reports, to demonstrate entitlement to summary judgment (see Loadhott v New York City Tr. Auth., 12 A.D.3d 352, 783 N.Y.2d 660 [2d Dept 2004]; Marsh v Wolfson, 186 A.D.2d 115, 587 N.Y.S.2d 695 [2d Dept 1992]; Pagano v Kingsbury, 182 A.D.2d 268,577 N.Y.S.2d 692 [2d Dept 1992]). A defendant also may establish prima facie entitlement to summary judgment using the plaintiffs deposition testimony and unworn medical reports and uncertified records prepared by the plaintiffs treating medical providers (see Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Pryce v Nelson, 124 A.D.3d 859, 2 N.Y.S.3d 214 [2d Dept 2015]; Estaba v Quow, 1A A.D.3d 734, 902 N.Y.S.2d 155 [2d Dept 2010]; Guzman v New York City Tr. Auth., 15 A.D.3d 541, 790 N.Y.S.2d 217 [2d Dept 2005]).
A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complains of pain with objective medical evidence demonstrating the extent or degree of the alleged physical limitations caused by the injury and its duration (see Bamunoo v Fiero, 88 A.D.3d 831, 931 N.Y.S.2d 239 [2d Dept 2011]; Rovelo v Volcy, 83 A.D.3d 1034,921 N.Y.S.2d 322 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (see Perl v Meher, 18 N.Y.3d 208,936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra; McEachnn v City of New York, 137 A.D.3d 753, 25 N.Y.S.3d 672 [2d Dept 2016]). Proof of a herniated disc or a bulging disc is insufficient to establish a "serious injury" within the meaning of the statute without objective medical evidence establishing the extent and duration of the alleged physical limitation (see Catalano v Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759 [2d Dept 2010]; Stevens v Sampson, 72 A.D.3d 793,898 N.Y.S.2d 657 [2d Dept 2010]; Keith v Duval,, 71 A.D.3d 1093,898 N.Y.S.2d 184 [2d Dept 2010]).
Defendants established, prima facie, that plaintiff passenger did not sustain a serious injury within the meaning of Insurance Law S 5102 (d) as a result of the accident (see Toure v Avis Rent A Car Sys., supra; YiDi Chen v Falikma,, 186 A.D.3d 1295, 127 N.Y.S.3d 889 [2d Dept 2020]; Staff v Yshua, 59 A.D.3d 614,874 N.Y.S.2d 180 [2d Dept 2009]). Defendants submitted competent medical evidence demonstrating, prima facie, that plaintiff passengers alleged injuries did not constitute serious injuries under the permanent loss, permanent consequential limitation, or significant limitation of use categories of the statute (see Yi Di Chen v Falikman, supra; Pendleton v Bizzoco, 152 A.D.3d 711, 58 N.Y.S.3d 567 [2d Dept 2017]; Staff v Yshua, supra). Dr. Sadr supplied an affirmation on behalf of defendants, in which he avers among other things that he is a neurosurgeon licensed to practice in New York, and that he performed an independent neurosurgical examination of plaintiff passenger on September 18, 2019. He states that he has reviewed among other things, various medical records and reports, and that he measured the range of motion in plaintiff passengers cervical and lumbar spine using a goniometer, and compares those results to the normal range of motion. Based on Dr. Sadr's measurements, plaintiff passenger allegedly had normal range of motion in his cervical and lumbar spine. Dr. Sadr diagnoses plaintiff passenger as having sustained cervical and lumbar sprains, which had since resolved (see Romero v Brathwaite 154 A.D.3d 894, 62 N.Y.S.3d 170 [2d Dept 2017]; Kreimermnn v Stunis, 74 A.D.3d 753 902 N.Y.S.2d 180 [2d Dept 2010]; Hasner v Budnik, 35 A.D.3d 366,826 N.Y.S.2d 387 [2d Dept 2006]) He opines that the MRI studies performed on April 16, 2018, were indicative of multi-level spondylotic changes without any acute fractures or dislocations. He further opines that the findings were preexisting and not related to the subject accident (see Schiliing v Labrado,, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Gouvea v Lesende, 127 A.D.3d 811,6 N.Y.S.3d 607 [2d Dept 2015; Greenberg v Macagnon, 126 A.D.3d 937, 7 N.Y.S.3d 185 [2d Dept 2015]). With respect to plaintiff passengers shunt, Dr. Sadr explains that a CT scan of plaintiff s passenger head and shuntogram, both of which were performed on March 16, 2018, demonstrate no acute findings or evidence of shunt malfunction. Dr. Sadr further opines that plaintiff passenger currently does not require neurosurgical intervention for his cervical or lumbar spine or cerebral arachnoid cyst. Dr. Sadr notes, in part, based on his examination of plaintiff passenger, that plaintiff passengers speech appeared fluent, that his cranial nerves were intact, and that he had a negative Hoffmann's sign bilaterally.
An orthopedic surgeon, Dr. Healy, also supplied an affirmation on behalf of defendants, in which he indicates that he reviewed, among other, various medical records, and that he performed an independent evaluation of plaintiff passenger on September 12,2019. With respect to plaintiff passengers left knee, Dr. Healy found, among other things, no evidence of instability in the AP plane or of varus or valgus stress, and negative Lachman, McMurray, and anterior and posterior drawer tests. He also noted that he found no proximal or distal swelling, edema, or tendernes,, and no gross motor or sensors deficits, and that plaintiff passenger was ambulating with a normal gait. Dr. Healy diagnoses plaintiff passenger as potentially having cervical and lumbar strains and a contusion to his left knee, which have resolved.
Moreover, in their moving papers, defendants identified a cessation of treatment (see Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]). At plaintiff passenger's deposition, which was held on March 21,2019, he testified that after the accident he had two visits with Dr. Egnor, and that he subsequently started receiving therapeutic treatment at Perry Physical Medicine, approximately three weeks after the accident. Plaintiff passenger further testified that he received therapeutic treatment at Perry Physical Medicine for approximately two weeks, and at Speonk Physical Medicine for approximately 4½ to 5 months thereafter. Plaintiff passenger also testified that he had no future appointments scheduled for treatment..
Defendants having met their initial burden on the issue of whether plaintiff passenger sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident, the burden shifted to the non-moving parties to raise a triable issue of fact (see Gaddy v Eyler, supra; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). In opposition, plaintiffs raised a triable issue of fact as to whether plaintiff passenger sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law S 5102 (d) as a result of the accident (see Latini v BarweUtfl A.D.3d 1305, 121 N.Y.S.3d 760 [4d Dept 2020]; Pendleton v Bizzoco, supra; Gellis v Singho, 92 A.D.3d 720, 938 N.Y.S.2d 448 [2d Dept 2012]). Dr. Egnor supplied an affirmation on behalf of plaintiffs. Dr. Egnor avers, in relevant part, that he is a board certified neurosurgeon, and indicates that in preparation for rendering an opinion in this matter, he reviewed, among other, various medical records and reports. Dr. Egnor explains that he performed surgery on plaintiff passenger as an infant to shunt an arachnoid cyst. According to Dr. Egnor's affirmation, plaintiff passenger sought treatment from him again following the subject accident. Dr. Egnor explains that he examined plaintiff passenger on March 15, 2018, at which time plaintiff passenger presented with complaints of persistent discomfort and headaches in the surgical region near the posterior fossa, and that he recommended a CT scan and shuntogram be performed. Dr. Egnor avers that an intact shunt catheter was not visualized in the shuntogram, which was performed on March 16, 2018,and that a CT scan study, which was performed that same day, indicated a shunt catheter was in place within a posterior fossil arachnoid cyst. He also opines that while there was no intracranial hemorrhage or extra-axial fluid collection, that there was concern as to whether the shunt catheter remained stable.
Dr. Egnor further avers that plaintiff passenger presented for a follow-up evaluation on May 8, 2019,with complaints of headaches and neck pain, and that his symptoms and complains were suggestive of shunt over drainage. He further avers that he requested a brain MRI study, and that he advised plaintiff passenger of the potential need to surgically remove the shunt. Dr. Egnor states that plaintiff passenger presented for another follow-up evaluation on February 22, 2020, complaining of headaches. Dr. Egnor states that he recommended that plaintiff passenger undergo another CT scan study of his brain and shunt series. Dr. Egnor opines that the CT scan study of the brain and shunt series were indicative of multiple sites of breakage. He reports that plaintiff passenger returned for another follow-up examination on July 22,202,, with continued complaints of headaches, and that he advised plaintiff passenger to schedule an appointment for next year or sooner if indicated. Dr. Egnor diagnoses plaintiff passenger as having sustained a fractured shunt below the mastoid with the distal catheter broken off and coiled in his pelvis, hydrocephalus, and intermittent unresolved headaches and facial pain. Dr. Egnor explains that the fractures in the shunt prevent it from draining and functioning properly, and that the cerebrospinal fluid buildup is the cause of plaintiff s passengerss headaches and cognitive issues. He also concludes that plaintiff passengerss persistent headaches, fractured shunt, and hydrocephalus were caused by the subject motor vehicle accident, since plaintiff passenger reported no prior injuries to his head or episodes of headaches or head pain prior to the subject accident. Dr. Egnor further concludes, within a reasonable degree of neurological certainty, that plaintiff passengerss headaches and hydrocephalus, which were caused by the fractured shunt, are permanent,, significant, and consequential limitations to his central nervous system, and that he requires surgical shunt replacement.. With respect to any alleged cessation of treatment, plaintiffs raised a triable issue of fact as to whether there was a gap in plaintiffs passengerss treatment (see Pffastuszynski v Lofaso, 140 A.D.3d 1710, 33 N.Y.S.3d 635, [4d Dept 2016]; see also Seecoomar v Ly, 43 A.D.3d 900,841 N.Y.S.2d 624 [2d Dept 2007]). By his affirmation, Dr. Egnor avers that he continuously treated plaintiff passenger after the subject accident. He elaborates that plaintiff passenger has been under his care since March of2018, and that "[he] ha[s] continued to examine, treat and follow Corey who again came to [his] office for appointments on April 19, 2018, May 8, 2019, February 24, 2020 and July 22,2020." Contrary to defendants' contention, plaintiffs do not improperly raise new allegations for the first time in opposition to their summary judgment motion (see generally Schwartzberg v Huniington Hosp,, 163 A.D.3d 736, 81 N.Y.S.3d 118 [2d Dept 2018]; DB v Montefiore Med. Ctr., 162 A.D.3d 478,80 N.Y.S.3d 9 [1st Dept 2018]; cf. Kreimermnn v Stunts, supra; Marte v New York City Tr. Auth., 59 A.D.3d 398,871 N.Y.S.2d 921 [2d Dept 2009]). Rather, plaintiffs' claims regarding plaintiff passengerss brain shunt were sufficiently encompassed within the allegations set forth within plaintiffs' verified bill of particulars and supplemental bill of particulars, including that plaintiff passenger claims he sustained aggravation of a previously asymptomatic and latent shunt implantation, and traumatically induced debilitating headaches, and that he claims the need for future neurosurgery, as a result of the subject accident. Plaintiffs merely expends upon allegations previously alleged. The Court finds defendants' argument that Dr. Egnor's opinion is "speculative and hyperbole" unavailing. While no records corresponding with plaintiff passenger's May 8, 2019 visit with Dr. Egnor are submitted along with Dr. Egnor's affirmed report, such a record is submitted, albeit not in admissible form (see CPLR 4518 [c]), in opposition to defendants' motion to vacate the note of issue. In any event, Dr. Egnor relies upon other evidence in admissible form in rendering his opinions (see e.g. Pietropinto v Benjamin, 104 A.D.3d 617, 961N.Y.S.2d461 [1st Dept 2015]; Vaughan v Leon, 94 A.D.3d 646,943 N.Y.S.2d 63 [1st Dept 2012]; see generally I. A. v Mejia, 174 A.D.3d 770, 105 N.Y.S.3d 103 [2d Dept 2019]).
The Court now turns to defendants' motion to vacate the note of issue and to strike the action from the trial calendar. The filing of a note of issue and certificate of readiness denotes the end of the discovery phase of litigation (see Arons v Jutkowtiz, 9 NY3d 393, 411,800 N.Y.S.2d 345 [2007]; Tirado v Miller, 75 A.D.3d 153,901 N.Y.S.2d 358 [2d Dept 2010]). Section 202.21 (e) of the Uniform Rules for Trial Courts (22 NYCRR, provides, in pertinent part, that within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to vacate the note of issue "upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect." A party seeking additional discovery after expiration of the 20-day period provided in Uniform Rules for Trial Courts (22 NYCRR) S 202 21 (e) must show "unusual or unanticipated circumstances developed] subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice" (Uniform Rules for Trial Cts [22 NYCRR] S 202.21 [d]; see Reardon v Macy's,__A.D.3d __, 2021 NY Slip Op 00582 [2d Dept 2021]; Utica Mut. Ins. Co. v P.M.A. Corp., 34 A.D.3d 793 826 N.Y.S.2d 138 [2d Dept 2006]). Nonetheless a court, on its own motion, may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or the certificate of readiness fails to comply with the requirements of that section in some material respect (Uniform Rules for Trial Courts [22 NYCRR] § 202.21 [e]; see Bundhoo v Wendy's, 152 A.D.3d 734,60 N.Y.S.3d 58 [2d Dept 2017]) A court, however, may deny a motion to vacate the note of issue, even when there is outstanding discovery, if there was ample time to complete the disclosure process (see Remark Elec. Corp. v Manshul Const. Corp., 242 A.D.2d 694, 662 N.Y.S.2d 592 [2d Dept 1997]; Mardiros v Ghaly, 206 A2Dd 413 614 N.Y.S.2d 435 [2d Dept 1994]; Simmons v Kemble, 150 A.D.2d 986,541 N.Y.S.2d 875 [3d Dept 1989]; Bycomp, Inc. v New York Racing Assn,, Inc., 116 A.D.2d 895, 498 N.Y.S.2d 274 [3d Dept 1986]).
Further, Uniform Rules for Trial Courts (22 NYCRR) ~ 202.7 (a) requires that a motion relating to disclosure must be supported by an affirmation that counsel "has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." The affirmation of good-faith effort "shall indicate the time, place, and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held" (Uniform Rules for Trial Courts [22 NYCRR] ~ 202.7 [c]). The failure to submit an affirmation attesting to a good-faith pre-motion attempt to resolve the discovery dispute at issue may be excused where any effort to resolve the present without court intervention would have been futile (see Capacity Group of NY, LLC v Dun,, 186 A.D.3d 1482, 131 N.Y.S.3d 373 [2d Dept 2020]; Loeb v Assara NY IL.R, 118 A.D.3d 457,977 N.Y.S.2d 365 [1st Dept 2014]; Scaba v Scaba, 99 A.D.3d 610,953 N.Y.S.2d 27 [1st Dept 2012]).
Defendants' motion to vacate the note of issue and to strike the action from the trial calendar is denied. Their motion to vacate the note of issue was not supported by an affirmation of good faith demonstrating that there were communications between the parties evidencing a diligent effort to resolve the present discovery dispute, or indicating good cause why no such communications occurred (see Murphy v County of Suffolk, 115 A.D.3d 820, 982 N.Y.S.2d 380 [2d Dept 2014]; Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 A.D.3d 908, 965 N.Y.S.2d 555 [2d Dept 2013]; Mironer v City of New York, 79 A.D.3d 1106,915 N.Y.S.2d 279 [2d Dept 2010]; Natoii v Milazzo, 65 A.D.3d 1309,886 N.Y.S.2d 205 [2d Dept 2009]). Here, defendants have failed to submit any proof that they actually made any formal demand upon plaintiff passenger for a further examination before trial or further independent medical examination prior to making their motion to vacate the note of issue. In any event, defendants did not demonstrate that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue and certificate of readiness to justify further discovery (see Prevost v One City Block LLC, 155 A.D.3d 531, 65 N.Y.S.3d 172 [1st Dept 2017]; Schenkv Maloney, 266 A.D.2d 199, 697 N.Y.S.2d 332 [2d Dept 1999]; Frangella v Sussma,, 254 A.D.2d 391,679 N.Y.S.2d 87 [2d Dept 1998]). Defendants also failed to demonstrate that plaintiffs alleged new or additional injuries, or that the nature and extent of plaintiff passengerss existing injuries have changed dramatically (see Schenk v Maloney, supra; Frangella v Sussman, supra). By the verified bill of particular,, plaintiff passenger alleges, among other things, that his previous asymptomatic and latent shunt implantation was aggravated and he claims the need future neurosurgery, as result of the subject accident. Accordingly, the verified bill of particulars put defendants on notice of plaintiff passengerss claimed need for future neurosurgery. Plaintiff passengerss deposition testimony further confirmed that he was advised of the possibility of neurosurgery. Moreover, in support of their motion, defendants submit, among other things the affirmed report of Dr. Egnor, in which he avers, in pertinent part, that, based on the CT scan report of plaintiff passengerss head, which was performed on March 16, 2018, there was concern as to whether plaintiff passengerss shunt catheter remained stable. Dr. Egnor also avers that on May 8, 2019, plaintiff passenger presented to him with symptoms suggestive of shunt over drainage, and he was advised of the potential need for surgical removal of his shunt. While defendants suggest that they were not in possession of records from plaintiff passenger's May 8, 2019 visit with Dr. Egnor, there is no indication that defendants requested the authorization for the release of such records, and there is no explanation as to why defense counsel did not raise any discovery disputes at the compliance conference. Moreover based on the record, plaintiff passenger has not undergone surgery, nor has surgery been scheduled. Further, the Court declines to exercise its discretion, on its own motion, to vacate the note of issue at this juncture (see Uniform Rules for Trial Courts [22 NYCRR] S 202.21 [e]).
Accordingly, the motions by defendants are denied.