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Second Department Affirms Order Denying Motion to Strike a Note of Issue and Certificate of Readiness

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  • Posted on: Dec 26 2019

From time to time, this Blog writes about procedural issues that arise during the course of a litigation. Today, we write about the note of issue and certificate of readiness.

A note of issue is a form that is filed and served on all parties confirming that the case is ready for trial. CPLR § 3402(a). Although any party may file the note of issue after issue is joined, it is usually the plaintiff who files the form.

In addition to the note of issue, the party making the filing must also file a certificate of readiness. 22 NYCRR § 202.21. A certificate of readiness provides a certification that, among other things, all pretrial discovery has been completed, there are no outstanding requests for discovery, there has been a reasonable opportunity to complete all discovery proceedings, and the case is ready for trial.

“The purpose of a note of issue and certificate of readiness is to assure that cases which appear on the court’s trial calendar are, in fact, ready for trial.” Tirado v. Miller, 75 A.D.3d 153 (2d Dept. 2010).

Sometimes, the parties are not in agreement that the case is ready for trial. When that happens, a motion to vacate the note of issue typically follows. Such was the case in Cioffi v. S.M. Foods, Inc., 2019 N.Y. Slip Op. 09250 (2d Dept. Dec. 24, 2019) (here).

Pursuant to the Uniform Rules for Trial Courts, “[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding 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.” 22 NYCRR § 202.21(e). A statement in a certificate of readiness to the effect that all pretrial discovery has been completed is a material fact, and where that statement is incorrect, the note of issue should be vacated. Barrett v. New York City Health & Hosps. Corp., 150 A.D.3d 949, 951-952 (2d Dept. 2017).  Thus, “[w]here a party timely moves to vacate a note of issue …, it need show only that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of … section [202.21] in some material respect.” Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390 ([1st Dept. 2006); 22 NYCRR § 202.21(e). The movant is not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue. Jacobs v. Johnston, 97 A.D.3d 538, 538 (2d Dept. 2012); 22 NYCRR § 202.21(d)(e).

Where the movant fails to timely seek vacatur of the note of issue and certificate of readiness, however, he or she must demonstrate “good cause” for vacatur. 22 NYCRR § 202.21(e). To satisfy the “good cause” requirement, the party seeking vacatur must “demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice.” Ferraro v. North Babylon Union Free School Dist., 69 A.D.3d 559, 561 (2d Dept. 2010 (quoting White v. Mazella-White, 60 A.D.3d 1047, 1049 (2d Dept. 2009) (internal quotation marks omitted)).

Further, where the court has directed the completion of discovery by a certain date or where the party seeking vacatur has failed to timely comply with court orders and discovery demands, denial of a motion to vacate is proper. Encarnacion v. Monier, 81 A.D.3d 875 (2d Dept. 2011); Rampersant v. Nationwide Mut. Fire Ins. Co., 71 A.D.3d 972, 973 (2d Dept. 2010); Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 955 (2d Dept. 2009).

Whether to grant the motion to vacate a note of issue and certificate of readiness rests within the sound discretion of the court. Rampersant, 71 A.D.3d at 973.

Cioffi v. S.M. Foods, Inc.

Cioffi involved an action to recover damages for, among other things, personal injuries. The plaintiffs appealed from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated December 2, 2015, which, inter alia, denied their motion to strike the note of issue and certificate of readiness and to direct further discovery. The Appellate Division, Second Department affirmed.

The Second Department agreed with the motion court that plaintiffs had ample opportunity to conduct the discovery plaintiffs claimed was needed. Thus, even though the plaintiffs timely filed the note of issue and certificate of readiness as ordered by the motion court, the Second Department found no basis to disturb that order:

Here, the Supreme Court issued a trial readiness order on August 27, 2015, which, inter alia, directed the plaintiffs to serve and file a note of issue within 20 days. At that time, it had been 6½ years since the injured plaintiff’s accident, 6 years since the original summons and complaint were filed, and 4 years since the present action was commenced. In that time, the plaintiffs had served more than 50 discovery demands and moved more than 36 times to compel various disclosure. On September 21, 2015, the plaintiffs filed their note of issue as directed, but the following day moved to strike the note of issue and certificate of readiness due to a need for further discovery and to direct certain disclosure. The court found that the plaintiffs had been given “every opportunity to conduct discovery” and had done so “extensively,” and that vacatur of the note of issue and certificate of trial readiness was not warranted. Under these circumstances, we agree with the court’s denial of the plaintiff’s motion.

Slip op. at *2.

Takeaway

The court may vacate a note of issue where a material fact set forth therein, i.e., the representation that discovery is complete, is incorrect. Cioffi shows that the court’s discretion in determining the correctness of that fact is broad.

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