Post-Note of Issue Discovery

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 191-208

CHAPTER 6

Post-Note of Issue Discovery

§6:01 New York Trial Notebook 6-2

I. GENERAL POINTS

§6:01 Methods of Obtaining

Post-Note of Issue

Discovery

Discovery in New York civil practice is

completed by the filing of the note of issue and

certificate of readiness for trial. Plaintiff—by filing

these documents with the court—and defendant—

by not objecting to them—certify that all discovery

has been completed and the case is ready to be

placed on the trial calendar of the court. [See Ch 3.]

Unless both parties consent, post-note of issue

discovery can occur only in one of the following

ways:

• On court order vacating the note of issue

after a showing that the note of issue

incorrectly asserted that discovery was

complete [see §6:20 ff]; or

• On court order after a showing of unusual

or unanticipated circumstances and

substantive prejudice [see §6:40 ff.]

[22 NYCRR §202.21(d), (e) (Supreme and County

Courts); 22 NYCRR §206.12(c), (d) (Court of

Claims); 22 NYCRR §208.17(c), (d) (NYC Civil

Court; 22 NYCRR §210.17(b), (c) (City Courts

outside New York City); 22 NYCRR §212.17(c),

(d) (District Courts).]

Courts have granted this relief sparingly because

cases need to be moved from commencement to

disposition in an orderly and efficacious manner with

deference to considerations of judicial economy.

§6:02 Agreement to Continue

Discovery Is

Unenforceable

An agreement for discovery to continue beyond

filing of an uncontested certificate of readiness is

unenforceable. [Spinosa v. Hartford Fire Insurance

Co., 114 AD2d 633, 634, 494 NYS2d 468 (3d Dept

1985) (defendant had consented to post-note of

issue discovery, but not to “unlimited repetitious

disclosure”; “It is well settled that the parties may

not circumvent the statement of readiness rule

by private agreement.”); Anzelone v. Emerson

Elec. Co., 56 AD3d 1264, 867 NYS2d 836 (4th

Dept 2008) (“neither an agreement between the

parties to conduct further discovery nor the fact

that further discovery was indeed conducted after

the note of issue was filed constitutes a special,

unusual, or extraordinary circumstance”).]

IN PRACTICE: Have Court Order Post-

Note of Issue Discovery

Plaintiffs frequently are willing to agree

to allow post-note of issue discovery if the

alternative is fighting a motion to strike the

note of issue. To avoid a private agreement

being declared a nullity, have a stipulation

permitting discovery post-note of issue “so

ordered” by the court.

§6:03 Distinction Between Two

Situations

The motion to vacate must be brought within

20 days after service of the note of issue and the

moving party need only demonstrate in what

respect the case is not ready for trial. After

20 days have expired, the movant must meet

the more difficult standard of showing unusual

or unanticipated circumstances and substantial

prejudice. [Ferraro v. North Babylon Union Free

School Dist., 69 AD3d 559, 892 NYS2d 507 (2d

Dept 2010; Audiovox Corporation v. Benyamini,

265 AD2d 135, 138, 707 NYS2d 137, 140 (2d

Dept 2000); Vargas v. Villa Josefa Realty Corp., 28

AD3d 389, 815 NYS2d 30 (1st Dept 2006).]

§6:04 Supplemental Disclosure

Distinguished

CPLR 3101(h) requires that discovery responses

be amended or supplemented if the responding party

obtains information that the original response is not

correct, or is no longer correct or complete and a

failure to amend would be materially misleading.

CPLR 3101(h) provides that if new information

is obtained so shortly before trial that there is no

time to properly amend discovery responses, the

information will not be precluded; rather, the court

may make whatever order it deems just.

IN PRACTICE:

In view of CPLR 3101(h)’s saving provision,

the time the “new” information was obtained

may become an issue. Thoroughly document

the time and the means by which the “new”