SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
October 2, 2009
TIMOTHY SUPHANKOMUT, AS ADMINISTRATOR OF THE ESTATE OF AMPHAN PHETDUM, DECEASED, PLAINTIFF-RESPONDENT,
CHI-TEH YU, M.D., MICHAEL HOCKO, M.D., JEAN G. HAAR, D.D.S., M.D., BUFFALO MEDICAL GROUP, P.C., RAYMOND V. PAOLINI, JR., M.D., AND BUFFALO OTOLARYNGOLOGY GROUP, P.C., DEFENDANTS-APPELLANTS.
Appeals from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), entered October 3, 2008 in a medical malpractice action. The order, insofar as appealed from, denied defendants' motions to vacate the note of issue and certificate of readiness and denied defendants' application to conduct two nonparty depositions.
PRESENT: HURLBUTT, J.P., CENTRA, FAHEY, PINE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motions are granted and the note of issue and certificate of readiness are vacated, and the second ordering paragraph is vacated.
Supreme Court erred in denying defendants' motions seeking to vacate the note of issue and certificate of readiness. Defendants sought the relief within 20 days after service of the note of issue and certificate of readiness, and they provided affidavits establishing that discovery was incomplete when the note of issue and certificate of readiness were filed. Thus, "a material fact in the certificate of readiness [was] incorrect" (22 NYCRR 202.21 [e]; see Shoop v Augst, 305 AD2d 1016, 1017; see also Aviles v 938 SCY Ltd., 283 AD2d 935). We therefore reverse the order insofar as appealed from, grant defendants' motions and vacate the note of issue and certificate of readiness, and vacate the second ordering paragraph to permit the further discovery sought by defendants.
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