The quaint Notice of Trial

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51887(U)

I never fully agreed with the assertion that CPLR 3212(a) applies to a “Notice of Trial”. The Note of Issue is a mandatory document in Civil Supreme Court and County Court practice, regardless of party status. In the lower courts, a Notice of Trial only kicks in if both sides are attorney represented. To me, that is significant enough to cast doubt on this line of reasoning. But would anyone besides me attempt to have the Appellate Division analyze this discreet issue?

The other issue is sad. I say “sad” because a Notice of motion is made when served. The lower courts are no e-filing courts and service requires mailing. As any practitioner knows, Civil Court Kings County is known for losing, misplacing or conveniently failing to calendar documents. The inefficiency of a uniform statewide lack of e-filing creates these types of cases. So now we are in 2020 and the lower courts STILL do not have mandatory e-filing? Maybe 2021

“It is uncontroverted that plaintiffs filed their notice of trial on July 14, 2016. Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]; Boereau v Scott, 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). “A [*2]motion on notice is made when a notice of the motion . . . is served” (CPLR 2211). Defendant’s affidavit of service states that its summary judgment motion was served on November 23, 2016, which is over 120 days after plaintiffs had filed their notice of trial. Thus, defendant’s summary judgment motion was untimely

Note of Issue: Pitfalls

Williams v Laura Livery Corp., 2019 NY Slip Op 04664 (1st Dept. 2019)

“Once plaintiff filed the notice of issue and certificate of readiness certifying to the court that all discovery was complete without reserving his rights or preserving objections, he waived his right to seek preclusion (see Rivera-Irby v City of New York, 71 AD3d 482 [1st Dept 2010]).”

Lesson to the wise. Without a preclusion order, the surprise affiant can appear.

The interesecton of the Note of Issue and timely summary judgment motion

Khan v Macchia, 2018 NY Slip Op 06519 (2d Dept. 2018)

(1) “In March 2016, the plaintiff filed a note of issue, accompanied by an affirmation of her counsel which stated, inter alia, that while discovery was not complete and the depositions of all parties were still outstanding, the note of issue and certificate of readiness were being filed in order to comply with the part rules of the assigned Justice. At a subsequent conference, a Court Attorney Referee (Anna M. Grimaldi, Ct. Atty. Ref.), so-ordered a stipulation which directed that Macchia’s deposition was to be held on July 20, 2016, and the City’s deposition was to be held on July 22, 2016. On July 8, 2016, Macchia moved for leave to extend her time to file a summary judgment motion until 120 days after completion of discovery. The Supreme Court denied the unopposed motion, and Macchia appeals.”

(2)  [Court discussed 202.21(d) and (e) involving post Note of Issue discovery]

(3) “Here, it appears that Macchia did not comply with either method, but, because depositions of the parties had not yet been conducted, the Court Attorney Referee so-ordered a stipulation which directed that further discovery take place beyond the date that summary judgment motions were to be filed. Given the Court Attorney Referee’s implicit consent to the basis for the extension of the time to move for summary judgment, Macchia reasonably believed that the deadline for summary judgment motions would likewise be extended. Thus, under these particular facts and circumstances, we find that Macchia demonstrated good cause for allowing an extension of time to move for summary judgment”

(4) “We nevertheless remind counsel and the courts supervising discovery that provisions for the timely completion of discovery and the filing of motions for summary judgment are not mere suggestions, and noncompliance with those provisions should not readily be excused.”

As long as counsel is forced to file premature NOI’s, this will continue to happen.  Perhaps the uniform rules need to be amended to compel the striking of an NOI upon timely application when discovery is not completed.

Motion to restore granted upon erroneous settlement marking

GLM Med., P.C. v Geico Gen. Ins. Co., 2015 NY Slip Op 25405 (App. Term 2d Dept. 2015)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on May 19, 2008. A notation on the New York State Unified Court System eCourts public website indicates that the matter was “settled” on March 9, 2009. Approximately three and a half years later, plaintiff, asserting that the case was mistakenly marked “settled,” moved to restore the action to the trial calendar and for an order exempting plaintiff from filing another notice of trial.”

(2) “In support of plaintiff’s motion, its attorney stated that her review of the file shows that there had been no settlement, whereas defendant’s attorney asserts that the case was dismissed because the same causes of action had been settled with previous counsel. While the eCourts website, of which we may take judicial notice (see Matter of Cento Props. Co. v Assessor, 71 AD3d 1015 [2010];Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]), states that this matter was settled on March 9, 2009, such a notation on the website “does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104”

(3) “Since there is no proof that an enforceable settlement was ever reached, plaintiff’s motion should have been granted.”

Late motion to strike note of issue can be considered

Sansone v Sansone, 2014 NY Slip Op 00982 (2d Dept. 2014)

“The plaintiff failed to demonstrate that she served her motion, inter alia, to vacate the note of issue and certificate of readiness within 20 days after their service upon her (see CPLR 2211; 22 NYCRR 202.21[e]). Nevertheless, the Supreme Court properly granted the plaintiff’s motion, upon the plaintiff’s showing of good cause, since there were material misstatements of fact in the certificate of readiness, and a number of unforeseen circumstances stalled the completion of discovery (see 22 NYCRR 202.21[e]; Torres v Saint Vincents Catholic Med. Ctrs., 71 AD3d 873Drapaniotis v 36-08 33rd St. Corp., 288 AD2d 254; Club Italia v Italian Fashion Trading, 268 AD2d 219, 219-220). ”

What is illustrative is the citation to Torres, which states the following: “A motion to vacate the note of issue and certificate of readiness made more than 20 days after their filing will be granted only where “a material fact in the certificate of readiness is incorrect” or upon “good cause shown“”

So it appears that a material missatement in the certificate of readiness will allow a tardy motion to vacate note of issue to be made and considered.

Notice of Trial stricken

Tahir Med., P.C. v Central Mut. Fire Ins. Co., 2014 NY Slip Op 50092(U)(App. Term 1st Dept. 2014)

“Defendant’s timely motion to strike the action from the trial calendar should have been granted, since plaintiff’s August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests”

Plaintiff’s post-notice of trial cross motion for a protective order should have been denied. Plaintiff was barred from seeking such relief, where it previously filed a certificate of readiness, and failed to show that an unusual or unanticipated condition subsequently developed (see 22 NYCRR 208.17[d]; Capri Beachwear, Inc. v AAA Stretch, Inc., 49 AD2d 831 [1975]).  Inasmuch as the case has been restored to a pre-notice of trial posture as a result of our disposition, plaintiff may, if so advised, renew its motion for a protective order in Civil Court.”

There is a trend here that the discovery obligations of the  CPLR will be constu

Certificate of readiness that says discovery is outstanding is deemed a nullity

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.

Late Notice of Trial and standard of law as to Malella

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 2011 NY Slip Op 51551(U)(App. Term 2d Dept. 2011)

1) the 20-day time period to make a motion to strike is not absolute.

2)”detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws”

3) Why do Dr. McGee facilities seem to have these Malella issues?

Trivia – I subpoenaed Dr. McGee quite a few years ago to come to a trial on an EMG/NCV test he performed.  He actually showed up.  I am not sure what his view on complying with subpoenas is nowadays.

“While defendant’s motion to strike the action from the trial calendar was untimely, under all of the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]). Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded.”

Consolidation and belated discovery denied

SEE COMMENTS FROM DAMIN TOELL, ESQ. – for further explanation of this case.

Kipor Medicine, P.C. v GEICO, 2010 NY Slip Op 51247(U)(App. Term 2d Dept. 2010)

The branch of defendant’s motion seeking consolidation should have been denied since defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, the branch of [*2]defendant’s motion seeking leave to amend the answer should have been denied since defendant’s papers presented no evidence that the proposed amendment might have merit (see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). Defendant sought to amend its answer to assert that plaintiff’s certificate of incorporation had been revoked following the surrender, in April 2006, of the medical license of plaintiff’s sole shareholder. Plaintiff, however, is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to April 2006 (see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Defendant has not demonstrated that the facts herein are akin to a fraudulent incorporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Moreover, since defendant failed to submit an affidavit specifying that any unusual or unanticipated conditions had developed after the notice of trial had been filed which made it necessary for defendant to engage in further pretrial proceedings (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U]), the branch of defendant’s motion seeking to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial should also have been denied.

Two points.  One, consolidation motions seem to have the same rules as severance motions.  While it is easy to sever, it is equally as difficult to consolidate.  Two, belated discovery following the filing of a notice of trial is shunned upon.

A better question is assuming the facts as presented by Justice Golia are accurate (see below), why would anybody prosecute this type of action.  Does this make the law firm prosecuting this action a co-conspirator or accessory after the fact to a fraud?  I am not sure –

“Unlike the majority, I do not find that defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact,” or that defendant’s papers presented no evidence that the proposed amendment might have merit,” or that additional discovery should also have been denied.” Notwithstanding the foregoing, I agree with the majority in the ultimate result in that defendant waited nearly two years from the time it knew that Dr. Meisher had committed insurance fraud and was losing his medical license. Indeed, it was this very defendant, GEICO, that was the named victim” in the case to which Dr. Meisher entered his guilty plea. I can find no valid reason for this particular defendant to have ignored these concerns for such an extended period of time. Certainly, if defendant had submitted the same motion within a reasonable time, I would have voted to affirm the order of the Civil Court.”