Key Takeaway
Learn how filing a Note of Issue without preserving objections can waive your right to seek preclusion in New York personal injury cases.
Filing a Note of Issue and Certificate of Readiness represents a critical juncture in New York personal injury litigation. This document essentially tells the court that your case is ready for trial and that all necessary discovery has been completed. However, the language you use when filing this notice can have significant consequences for your case strategy.
The Note of Issue serves as more than just a procedural filing—it’s a binding certification to the court about the status of your case. When attorneys certify that discovery is complete without carefully preserving their rights, they may inadvertently surrender important tactical advantages. This becomes particularly problematic when dealing with potential notice of trial issues or when opposing parties attempt to introduce surprise evidence or witnesses.
Understanding the nuances of this filing requirement is essential for personal injury attorneys who want to maintain maximum flexibility in their litigation strategy. The timing and language of your Note of Issue can determine whether you’ll be able to challenge last-minute developments in your case.
Jason Tenenbaum’s Analysis:
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 ).”
Lesson to the wise. Without a preclusion order, the surprise affiant can appear.
Key Takeaway
The Williams case demonstrates that the language in your Note of Issue filing matters tremendously. When you certify that discovery is complete without reserving rights or preserving objections, you’re essentially telling the court that you’re satisfied with the current state of disclosure. This waiver can prevent you from later seeking to preclude surprise witnesses or evidence, even when circumstances might otherwise justify such relief. Strategic attorneys should consider whether motions to strike the note of issue might be necessary to preserve their clients’ rights.
