FACING A PRE-MATURE FILING OF A NOTE OF ISSUE
All too frequently, defendants are faced with a plaintiff's decision
to file a Note of Issue and Certificate of Readiness, despite the fact
that all pre-trial discovery proceedings have not yet been completed.
In fact, on many occasions, such a filing is made before the plaintiff
submits to a deposition or an independent medical examination.
Naturally, the defense is severely hindered if a case is allowed to remain
upon the trial calendar without such essential discovery proceedings
having taken place. By vigorous opposition to such sharp tactics, however,
our firm has been very successful in saving our clients from unfair
disadvantage.
Naturally, if a Note of Issue has been filed prematurely, a defendant
has the right to move to strike the Note of Issue. Such a motion would
assert that there remains outstanding essential discovery and that the
matter is not ready to be tried until such discovery has been
completed.
The problem experienced by defense counsel is that many judges are
reluctant, if not completely unwilling, to strike Notes of Issue, even
upon a showing that significant discovery remains outstanding. We
believe that this reluctance is based upon the courts' desire to move cases
along as quickly as possible, and the filing of a Note of Issue
certainly furthers such purpose. In other words, many judges seem more
concerned with moving their calendars than they are with the prejudice caused
to defendants by the premature filing of Notes of Issue.
The solution reached by such judges is to direct that the outstanding
discovery be held while the case remains upon the trial calendar. In
the past, this was not a particularly onerous solution for either side,
as the defendant was permitted to conduct the needed discovery and the
plaintiff's case was allowed to remain on the trial calendar.
However, in New York, a 1996 amendment to CPLR Rule 3212(a), as well
as the court system's push to get rid of its backlog, has made this
solution quite problematic for the defense. CPLR Rule 3212(a) now
provides that a summary judgment motion must be made within 30 to 120 days
after the filing of a Note of Issue depending upon the rules of the local
court. Some courts have set a 60-day rule, while others have
maintained a 120-day rule.
In any case, the requirement that a summary judgment motion be made
within a finite period following the filing of a Note of Issue, makes
the date of such filing very important to the defense. A clear example
of the enormous problem this can create for the defense can be seen in a
motor vehicle accident in which the defendant intends to make a summary
judgment motion based upon the "threshold defense." Such a motion is
almost always made following the completion of the plaintiff's
deposition and IME. If the plaintiff has filed his Note of Issue prior to
submitting to a deposition or an IME, then a court order allowing this
matter to remain on the trial calendar while such proceedings are held might
effectively deprive the defendant of its right to make a threshold
motion. In other words, the time within which to make such a motion would
expire while the essential discovery proceedings are conducted and
completed.
To prevent such unfair prejudice from befalling our clients, our firm
vigorously opposes any premature filing of a Note of Issue. In moving
to strike such Notes of Issue, we point out to the court that the
filing of a Note of Issue must be accompanied by a Certificate of Readiness,
in which plaintiff's counsel attests to the fact that all known
pre-trial discovery proceedings have been completed. We provide the court
with all documentation, including letters and notices, showing that
plaintiff's counsel was well aware of the fact that there were, and still
are, outstanding discovery demands, and that counsel's assertions to the
contrary in the Certificate of Readiness are simply untrue.
We specifically remind the court that the CPLR Rule 3212(a) time
limitation on summary judgment motions could cause the defense irreparable
injury by effectively depriving it of its right to make a summary
judgment motion if a matter remains on the trial calendar while discovery is
ongoing. We also point out that the court system's efforts to relieve
its backlog has been so successful, that cases can now be tried within
several months of the filing of a Note of Issue. This leaves
insufficient time to conduct the outstanding discovery and to follow up on any
information revealed during such discovery proceedings.
Finally, we point out that it is not only our client that is
disadvantaged by the plaintiff's inexcusable tactic of filing a premature Note
of Issue, but the court system itself is also harmed. We remind the
Judge that there are many cases before the court in which the parties are
awaiting a trial, but have "played by the rules" and not filed a Note
of Issue until it was appropriate to do so. By filing a Note of Issue
prematurely, the errant plaintiff is leapfrogging his/her case ahead of
the rule-abiding plaintiff. This clearly results in unfairness to all
except the wrongful plaintiff.
Happily, with such arguments, we have been successful in having most
cases stricken from the trial calendar while discovery is completed,
thereby preserving our clients' rights to move for summary judgment upon
completion of such discovery. Even where the court has allowed the
case to remain on the trial calendar, our arguments have been successful
in persuading the court to extend our clients' right to move for summary
judgment until completion of the outstanding discovery.
It is through such vigorous representation of our clients that we
have obtained ultimately successful resolutions of their cases. No party
should be deprived of its legal rights by means of sharp or extra-legal
tactics, nor by the desire of the judiciary to expedite cases through
the court system.
