Practice point: The Appellate Division determined that the Supreme Court properly granted those branches of the defendant's
motion which were to compel him to sign authorizations for the release
of certain medical records, to compel him to appear for a deposition,
and to vacate the note of issue. The Supreme Court correctly compelled
the plaintiff to sign the authorizations since he placed his medical
condition at issue
. The Supreme Court also correctly compelled the plaintiff to appear for a
deposition, as the defendant demonstrated that the deposition was
reasonably calculated to result in the disclosure of facts necessary to
defend the action
. Since the defendant moved to vacate the note of issue within the time
prescribed for doing so pursuant to 22 NYCRR 202.21(e), and demonstrated
that discovery was not complete in that the deposition of the plaintiff
had not occurred, medical authorizations still had not been provided,
and the action was not ready for trial, the note of issue was properly
vacated.
Student note: The Appellate Division also found that the Supreme Court properly enjoined the plaintiff from submitting any further motions or cross motions without leave of the court, based on his abuse of the judicial process
.
Case:
Breytman v Olinville Realty, LLC, NY Slip Op 06538 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Due diligence in the service of process.
