Key Takeaway
NY appellate court upholds trial court's refusal to vacate note of issue when defendants waited too long to seek discovery, including tax returns and social media data.
This article is part of our ongoing discovery coverage, with 98 published articles analyzing discovery 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.
Aikanat v Spruce Assoc., L.P., 2020 NY Slip Op 02188 (1st Dept. 2020)
“The court providently exercised its discretion in declining to vacate the note of issue or permit post-note of issue discovery in light of defendants’ failure to seek the discovery at an earlier time (see generally Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 ). Although defendants requested authorization to obtain plaintiff’s tax returns in 2015, they took no action to enforce their request until after the note of issue was filed. Similarly, they did not seek the Facebook Data until soon before the note of issue was filed, despite the asserted need for the information based on plaintiff’s testimony in his depositions, the last of which was taken in July 2018.
Defendants contend that the note of issue should be vacated because plaintiff misrepresented in the certificate of readiness that discovery was complete. However, the certificate of readiness correctly stated that plaintiff responded to all outstanding discovery requests, in that objections are an appropriate response. Furthermore, defendants failed to indicate why they are entitled to the discovery they belatedly sought; why the information in the tax returns was not available from another less private source, such as plaintiff’s employer’s payroll records (see Gama Aviation Inc. v Sandton Capital Partners, LP, 113 AD3d 456, 457 ); and why they waited so long to request the social media information.
Defendants also assert that they were also improperly denied the opportunity to depose a corporate witness from third-party defendant BGC Partners, Inc. (BGC), who had knowledge of their claims for contractual indemnification and failure to procure insurance, and that the first witness produced by BGC did not have the requisite knowledge. However, they fail to indicate why they waited until after the note of issue was filed to seek this discovery inasmuch as the sale of assets to BGC occurred in April 2012, and defendants deposed the corporate witness in August 2018. The court further noted that defendants moved for summary judgment on their indemnification claims against BGC, demonstrating that the additional discovery was superfluous.”
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I find this interesting as it is consistent with the view that the party who sleeps on his rights waives them. I believe that moving for summary judgment and asking for tax returns caused the court not insert its discretion in the place of the Supreme Court.
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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.
About This Topic
Discovery Practice in New York Courts
Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
98 published articles in Discovery
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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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