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Correct Note of issue asserting discovery is outstanding not basis for striking NoteApril 13, 2017

Suarez v Shapiro Family Realty Assoc., LLC, 2017 NY Slip Op 02914

(1) “Under the circumstances, where plaintiff’s certificate of readiness contained no incorrect material representations, the court properly refused to vacate the note of issue (cf. 22 NYCRR 202.21[e]). However, as plaintiff acknowledged in the note of issue and certificate of readiness, discovery was still outstanding.”

(2) “It is noted that granting Shapiro’s discovery request as to Duane Reade will not prejudice plaintiff, since the matter remains on the trial calendar”

This is how they do business in Supreme Queens.  I am not a fan since a Note of Issue should not be filed until discovery is completed.  OCA should step up to the plate on this one and not give Courts the power to force note of issues to be filed when discovery is outstanding.

2 Responses

  1. slick says:

    I dont see the big deal.It can take a year for a case to get on the trial calendar. If the Plaintiff acknowledges the discovery, and it gets resolved prior to trial date, early NOI shouldnt be an issue.

  2. Sorry Slick but it is lamentable. I am in the strange position in Queens of Filing a Note of Issue in Queens. Making a motion to extend the time to file a note of issue. And being on the record as not opposing a motion to strike a Note of Issue — all on the same case.

    Coupled with the fact that they will not let a discovery motion make it past cMP. It has to be stipped out. Queens is the best place for discovery dead beats.

    A Plaintiff cannot move a case and the Defense bar knows that so they ignore discovery. They ignore the case. And they get away with it. (I spend 90% of my time as Defense bar)

    Its almost like its a war against people who sue. Like they are trying to drive litigation out of the Court they way No Fault was driven from the Courts.

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