Key Takeaway
Analysis of Khan v Macchia case on Note of Issue filing and summary judgment motion deadlines when discovery remains incomplete in NY personal injury litigation.
This article is part of our ongoing notice of trial issues coverage, with 9 published articles analyzing notice of trial issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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)
(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”
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(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.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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