Key Takeaway
Appellate Division rules certificate of readiness stating discovery is outstanding creates a nullity, allowing unlimited time to strike note of issue in NY courts.
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; 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.
Related Articles
- New York No-Fault Insurance Law
- Consolidation and belated discovery denied
- Late motion to strike note of issue can be considered
- Late Notice of Trial and standard of law as to Malella
- Notice of Trial stricken
Legal Update (February 2026): The requirements for certificates of readiness under 22 NYCRR 202.21 and related procedural rules governing notes of issue may have been amended since this 2013 decision. Additionally, court practices regarding discovery completion requirements and the timing of motions to strike notes of issue may have evolved. Practitioners should verify current provisions of the Uniform Rules and recent appellate decisions before relying on the procedural framework discussed in this post.
