Jimenez v. Vermilyea 153, LLC.

Jimenez v Vermilyea 153, LLC. 2025 NY Slip Op 30090(U) January 8, 2025 Supreme Court, New York County Docket Number: Index No. 157188/2019 Judge: Arlene P. Bluth 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. 157188/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 01/08/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 157188/2019 EMITANIA JIMENEZ MOTION DATE 1/7/2025 Plaintiff, MOTION SEQ. NO. 002 -v- VERMILYEA 153, LLC., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .

Defendant’s motion to strike the note of issue is granted without opposition as described below.

Background On September 27, 2024, this Court uploaded an order directing plaintiff to file a note of issue as the parties had failed to update the Court about the status of discovery by the Court- ordered deadline of September 26, 2024 (NYSCEF Doc. No. 26). This this was the third consecutive deadline in which the parties ignored court orders and failed to upload a discovery update (see NYSCEF Doc. Nos. 24 and 25). Each of these orders warned that the Court might order that a note of issue be filed if the parties did not upload a discovery update (id.). That is precisely what happened here—the parties ignored the September 26, 2024 deadline and so the Court directed that a note of issue be filed by October 16, 2024.

A few hours later, the parties upload an untimely discovery stipulation and asked the Court to sua sponte extend the time to file the note of issue. No specific reason was provided for 157188/2019 JIMENEZ, EMITANIA vs. VERMILYEA 153, LLC. Page 1 of 4 Motion No. 002

Defendant then filed the instant motion to vacate the note of issue and attached a proposed discovery order. Plaintiff did not oppose.

Discussion The Court grants the motion to vacate the note of issue as, clearly, there is much discovery yet to be completed; the parties have not yet taken a single deposition. Moreover, as discussed at the oral argument, the proposed discovery stipulation (NYSCEF Doc. No. 34) is identical to the parties’ discovery stipulation so-ordered by this Court on January 4, 2024 (NYSCEF Doc. No. 23). This shows that the parties have not complied with a single Court- ordered deadline and they have done nothing to move this case.

In fact, the proposed stipulation contains a requirement that defendant respond to plaintiff’s demands for a bill of particulars and plaintiff’s combined demands (see NYSCEF Doc.

No. 23). Plaintiff uploaded these demands as NYSCEF Doc. Nos. 18 and 19 on June 18, 2021.

As the Court emphasized at the oral argument, the casual indifference exhibited by both parties towards this case stops now.

Discovery shall proceed as follows: 1) Defendant to respond to plaintiff’s combined demands and demand for a BP by January 21, 2025.

2) Plaintiff’s deposition shall take place on or before February 12, 2025.

3) Defendant’s deposition by March 5, 2025.

4) Defendant to notice plaintiff’s IME by March 5, 2025.

5) Plaintiff shall appear for the IME by April 2, 2025.

157188/2019 JIMENEZ, EMITANIA vs. VERMILYEA 153, LLC. Page 2 of 4 Motion No. 002

No adjournments of these dates will be granted absent extraordinary circumstances. That does not mean a deadline can be ignored due to a scheduling conflict by an attorney for one of the parties. Given the age of this case, this action must take priority. The failure to comply with these directives will result in proper penalties for the party at fault (i.e., if plaintiff does not show up for her deposition, then the complaint may be dismissed).

A further conference shall take place on April 10, 2025. By April 3, 2025, the parties are directed to upload an update about the status of discovery. The failure to upload this update to NYSCEF by April 3, 2025 may result in the Court directing an in person conference or the Court may direct that a note of issue be filed.

Accordingly, it is hereby ORDERED that defendant’s motion to strike the note of issue is granted; and it is further ORDERED that, within 15 days from the entry of this order, movant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk’s Office, who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further ORDERED that such upon the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website)].

157188/2019 JIMENEZ, EMITANIA vs. VERMILYEA 153, LLC. Page 3 of 4 Motion No. 002

Conference: April 10, 2025. Update due by April 3, 2025.

1/8/2025 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

157188/2019 JIMENEZ, EMITANIA vs. VERMILYEA 153, LLC. Page 4 of 4 Motion No. 002