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Certificate of readiness that says discovery is outstanding is deemed a nullityJune 20, 2013

Furrukh v Forest Hills Hosp., 2013 NY Slip Op 03968 (2d Dept. 2013)

“While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action (see CPLR 3216[c]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), here, the plaintiffs’ certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted

In Supreme Queens and in Supreme Nassau, the Courts force litigants to file a Note of Issue with certificates of readiness stating that discovery is outstanding.  Once that is done, the question becomes whether the other party can move to strike and if so when.  The Appellate Division seems to have really come down hard on this practice, and thankfully so.

If the NOI is a nullity, it follows that the motion to strike can be made at any time.  In other words, the movant would not be constrained by the 20-day period in the Uniform Rules to move to strike.

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