Correct Note of issue asserting discovery is outstanding not basis for striking Note

The timing of when to file a Note of Issue in New York civil litigation is a critical procedural matter that directly affects case progression and trial scheduling. Generally, a Note of Issue should only be filed when discovery is substantially complete, as it signals to the court that a case is ready for trial. However, as demonstrated in a recent Queens Supreme Court decision, some courts are taking a more permissive approach to this requirement.

This case highlights ongoing tensions in civil practice between strict adherence to discovery completion requirements and judicial case management preferences. The decision contrasts with typical expectations that motions for summary judgment should be denied when disclosure remains pending, and raises questions about when courts should consider late motions to strike a note of issue.

Jason Tenenbaum’s Analysis:

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). 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.

Legal Significance: The Tension Between Case Management and Discovery Completion

The Suarez decision reflects a judicial philosophy prioritizing case flow management over strict adherence to the principle that Notes of Issue should only be filed when discovery is genuinely complete. By refusing to strike a Note of Issue despite the plaintiff’s own acknowledgment that discovery remained outstanding, the Queens Supreme Court effectively sanctioned a practice allowing cases to advance toward trial even when parties have not concluded their investigation of facts and evidence. This approach creates tension with the foundational purpose of discovery—ensuring parties can fairly prepare for trial based on complete factual development.

The court’s reasoning—that the certificate of readiness contained no incorrect material representations—focuses on technical compliance with 22 NYCRR 202.21 rather than substantive readiness for trial. When a plaintiff accurately states in the certificate that discovery remains outstanding, this transparency regarding incomplete preparation should arguably counsel against accepting the Note of Issue rather than providing basis for upholding it. The court’s contrary conclusion suggests that honesty about discovery gaps is treated more favorably than false certifications of completeness, but still permits trial scheduling regardless of actual readiness.

This decision demonstrates how different judicial departments and individual judges approach case management with varying philosophies. Some courts strictly enforce discovery completion requirements before accepting trial scheduling, while others adopt more flexible approaches permitting cases to remain on trial calendars while parties complete outstanding discovery. The latter approach assumes parties can adequately protect their interests through protective orders, adjournments, or post-Note discovery motions, but creates risks of insufficient trial preparation.

The ruling also illustrates how courts balance competing interests: the systemic interest in efficient case progression and calendar management versus individual parties’ interests in thorough factual development before trial. By keeping the case on the trial calendar while permitting continued discovery, the court attempts to serve both interests—maintaining pressure toward resolution while allowing investigation to continue. However, this compromise can disadvantage parties whose discovery needs become urgent only as trial approaches, forcing expensive emergency motions for adjournments.

Practical Implications: Strategic Considerations for Note of Issue Filing

For practitioners in jurisdictions following the Suarez approach, strategic calculations regarding Note of Issue timing become more complex. Filing Notes of Issue with outstanding discovery creates procedural complications but may prove necessary to avoid judicial pressure or comply with court-imposed deadlines. Attorneys must balance the traditional wisdom that Notes should not be filed until discovery concludes against practical realities in courts that accept or even encourage such filings.

When courts permit Notes of Issue despite outstanding discovery, parties who filed them face subsequent risks if the outstanding discovery reveals case-dispositive information. Opponents may use post-Note developments to support summary judgment motions or to demonstrate that the filing party certified readiness prematurely, potentially supporting sanctions arguments. Attorneys must therefore carefully document the necessity for any outstanding discovery and preserve arguments that reasonable attempts were made to complete investigation before filing.

For opposing parties facing Notes of Issue filed with acknowledged outstanding discovery, the decision suggests that motions to strike may prove futile in certain jurisdictions. Instead, opponents should focus on obtaining court orders facilitating expedited completion of remaining discovery, seeking protective orders if discovery demands appear overbroad or harassing, or requesting trial adjournments if discovery produces unexpected complications requiring additional investigation.

Finally, Attorney Tenenbaum’s observation that OCA should address this issue highlights a systemic policy question: should statewide rules explicitly prohibit accepting Notes of Issue when parties acknowledge incomplete discovery, or should individual courts retain discretion to manage calendars based on local conditions? Until uniform standards emerge, practitioners must remain alert to varying practices across jurisdictions and individual judges.

Key Takeaway

The Queens Supreme Court’s decision to uphold a Note of Issue despite acknowledged outstanding discovery represents a departure from traditional practice standards. This approach prioritizes case flow management over complete discovery completion, potentially creating procedural complications and inconsistencies across different judicial departments in New York State civil practice.

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