Move quickly or do not move at all

Essential Discovery Rules in New York Personal Injury Cases: Lessons from Cashbamba v 1056 Bedford LLC

In personal injury litigation, discovery is the backbone of case preparation. However, New York’s strict procedural rules can trap unwary attorneys and derail even meritorious cases. The recent decision in Cashbamba v 1056 Bedford LLC, 2019 NY Slip Op 03456 (1st Dept. 2019), provides a stark reminder: in New York discovery practice, timing is everything, and procedural missteps can be fatal to your case.

This case illustrates two critical mistakes that can devastate your litigation strategy: failing to comply with good faith affirmation requirements and missing crucial deadlines after a note of issue is filed. For personal injury attorneys and their clients, understanding these requirements isn’t just about following rules—it’s about protecting your right to recover compensation for your injuries.

Understanding New York’s Good Faith Affirmation Requirement (22 NYCRR 202.7)

New York’s civil practice rules require more than just filing motions—they demand that attorneys demonstrate genuine efforts to resolve disputes before seeking court intervention. This requirement, codified in 22 NYCRR 202.7, is designed to reduce unnecessary court involvement and encourage professional cooperation between opposing counsel.

What the Cashbamba Court Found Deficient

In Cashbamba, the court highlighted a fundamental procedural failure that undermines many otherwise valid motions:

“Defendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion. Contrary to their contention, their counsel’s affirmations are insufficient, because they do not include the time, place, and nature of the consultations that counsel had with plaintiff’s counsel to try to resolve the issues raised by the motion.”

The Specific Requirements

Under 22 NYCRR 202.7(c), a proper good faith affirmation must include:

• Time: When did the consultations occur?
• Place: Where did these discussions take place?
• Nature: What specific issues were discussed?
• Outcome: What attempts were made to resolve the dispute?

Why Good Faith Affirmations Matter in Personal Injury Cases

Personal injury cases often involve extensive discovery disputes, from medical record production to expert witness depositions. When these disputes arise, the temptation is to immediately file a motion. However, New York courts expect attorneys to work together professionally to resolve discovery issues before involving the judicial system.

Common Discovery Disputes in Personal Injury Cases

Personal injury litigation frequently involves disputes over:

• Medical records and authorizations: Disputes over the scope and timing of medical record production
• Independent medical examinations: Scheduling and scope of defense medical examinations
• Expert witness disclosure: Timing and adequacy of expert witness reports
• Deposition scheduling: Conflicts over dates, locations, and witness availability
• Document production: Disagreements over the scope of discoverable materials

The Strategic Value of Meaningful Conferences

Beyond satisfying court requirements, genuine good faith conferences offer strategic advantages:

• Cost savings: Resolving disputes through discussion avoids motion practice expenses
• Time efficiency: Cases move faster when discovery disputes are resolved promptly
• Relationship building: Professional cooperation can facilitate future negotiations
• Case insight: Informal discussions may reveal information about the opponent’s strategy

The Critical Importance of Post-Note of Issue Timing

The Cashbamba decision also demonstrates another crucial lesson: once a note of issue is filed, attorneys must act with extraordinary speed to preserve their rights. The court’s analysis of defendants’ delay is particularly instructive for personal injury practitioners.

The Fatal Delay in Cashbamba

The court noted defendants’ inexcusable delay in seeking relief:

“Furthermore, defendants failed to provide an adequate explanation for their delay in seeking to compel the examination after plaintiff failed to appear. They also failed to explain why they did not move to reargue and/or appeal the court’s decision of June 15, 2017, wherein it denied defendants’ motion to vacate the note of issue… Instead, defendants waited until August 27, 2018, to move to strike the complaint or to preclude plaintiff from providing evidence of his neurological injuries.”

This delay—over a year—proved fatal to defendants’ motion. The court’s message is clear: move quickly or do not move at all.

Strategic Implications for Personal Injury Cases

In personal injury litigation, the note of issue filing triggers several critical deadlines:

• Motion deadlines: Most substantive motions must be made before or shortly after note of issue filing
• Discovery cutoffs: Additional discovery typically requires court permission after note of issue
• Expert disclosure deadlines: Expert witness reports must be exchanged according to strict schedules
• Trial preparation timelines: Cases move rapidly toward trial once certified as ready

Best Practices for New York Discovery Motion Practice

To avoid the pitfalls illustrated in Cashbamba, personal injury attorneys should adopt systematic approaches to discovery disputes and motion practice.

Creating Effective Good Faith Affirmations

When discovery disputes arise, document your good faith efforts meticulously:

• Schedule formal conferences: Don’t rely solely on letter exchanges
• Document everything: Keep detailed records of all communications
• Set deadlines: Give opposing counsel specific deadlines for responses
• Follow up in writing: Confirm agreements and disagreements in writing
• Be specific: Address each disputed item individually

Post-Note of Issue Case Management

Once your note of issue is filed, establish systems to ensure timely action:

• Calendar all deadlines immediately: Don’t wait to calculate deadline dates
• Monitor opposing counsel’s compliance: Track whether opponents meet their obligations
• Move quickly on violations: File motions promptly when opponents default
• Prepare contingency plans: Have backup strategies ready if primary approaches fail

How JTNY Law Handles Discovery Disputes Effectively

At the Law Office of Jason Tenenbaum, we understand that successful personal injury litigation requires meticulous attention to procedural details. Our systematic approach to discovery management helps ensure that procedural missteps don’t undermine our clients’ substantive rights.

Our Discovery Management Process

We employ proven strategies to navigate New York’s complex discovery rules:

• Proactive case planning: We map out discovery timelines from case inception
• Systematic documentation: Every client conference and opponent communication is carefully recorded
• Aggressive deadline monitoring: We use sophisticated calendaring systems to track all critical dates
• Strategic motion practice: When disputes arise, we move quickly and with complete procedural compliance

Protecting Your Right to Full Discovery

Personal injury cases often hinge on information that defendants prefer to keep hidden. Whether it’s internal safety reports, employee training records, or expert witness materials, we fight to ensure our clients receive all discoverable information. Our experience with New York’s procedural requirements means we can pursue aggressive discovery strategies while maintaining full compliance with court rules.

Related Personal Injury Discovery Issues

Discovery disputes in personal injury cases often intersect with other critical legal issues. Our firm handles comprehensive litigation strategies that address all aspects of your case, including medical malpractice discovery, premises liability investigations, and product defect documentation. Each practice area has unique discovery challenges that require specialized knowledge and experience.

The Broader Impact of Procedural Compliance

The Cashbamba decision reflects broader themes in New York litigation: courts expect professional competence and will not excuse procedural failures, even when underlying claims have merit. For injured parties, this means that choosing experienced counsel isn’t just about legal knowledge—it’s about ensuring that procedural expertise doesn’t become a barrier to recovery.

Common Procedural Traps in Personal Injury Cases

Beyond discovery motions, personal injury cases involve numerous procedural requirements that can derail unwary litigants:

• Statute of limitations compliance: Missing filing deadlines can bar otherwise valid claims
• Notice requirements: Claims against municipalities and other entities require special notices
• Expert witness disclosure: Late or deficient expert reports can result in preclusion
• Medical authorization compliance: Inadequate authorizations can delay discovery for months

Frequently Asked Questions About New York Discovery Rules

Q: What happens if my attorney fails to file a proper good faith affirmation?

A: Courts may deny or reject motions that lack adequate good faith affirmations. This can result in significant delays and may allow opposing parties to gain strategic advantages. In some cases, you may need to refile the motion with proper documentation, causing additional expense and delay.

Q: How quickly must I act after a note of issue is filed?

A: The Cashbamba case shows that delays of over a year can be fatal to your motion. Generally, you should act within weeks, not months, of discovering a problem. Courts expect immediate action when procedural violations or discovery defaults occur after note of issue filing.

Q: Can I still get discovery after the note of issue is filed?

A: Additional discovery after note of issue filing requires court permission and must meet strict standards. You typically must show that the discovery is necessary, that you couldn’t have obtained it earlier, and that it won’t delay trial. Courts are increasingly reluctant to allow post-note discovery.

Q: What should I do if opposing counsel isn’t cooperating with discovery?

A: First, document your efforts to resolve the dispute through good faith conferences. Schedule formal meetings, set deadlines, and confirm everything in writing. If cooperation still isn’t forthcoming, move quickly for court intervention with a properly supported motion that includes detailed good faith affirmations.

Q: How can I avoid discovery disputes in my personal injury case?

A: Work with experienced counsel who understands New York’s procedural requirements. Establish clear discovery timelines early in the case, communicate regularly with opposing counsel, and address potential problems promptly rather than letting them fester.

Moving Forward: Learning from Cashbamba

The Cashbamba decision serves as both a cautionary tale and a roadmap for successful discovery practice in New York. The key lessons are clear: comply meticulously with procedural requirements, document your good faith efforts thoroughly, and act with immediate decisiveness when problems arise.

For personal injury victims, the stakes couldn’t be higher. Procedural mistakes don’t just delay cases—they can prevent recovery entirely. When you’re dealing with serious injuries, lost wages, and mounting medical bills, you can’t afford to have your case derailed by preventable procedural errors.

The experienced personal injury attorneys at the Law Office of Jason Tenenbaum understand both the substance and procedure of New York personal injury litigation. We combine aggressive advocacy with meticulous attention to procedural details, ensuring that our clients’ cases move forward efficiently while preserving all available legal remedies.

Call 516-750-0595 for a free consultation to discuss your personal injury case and learn how our systematic approach to discovery management can help protect your rights and maximize your recovery.