Court Should Have Vacated Note of Issue Where Discovery Not Complete

On June 7, 2019, the Fourth Department issued a decision in Backer & Assoc., LLC v. PPB Eng'g & Sys. Design, Inc., 2019 NY Slip Op. 04541, holding that a court should have vacated a Note of Issue because discovery was not complete, explaining:

We agree with defendants that Supreme Court erred in denying that part of their motion seeking to vacate the note of issue and certificate of readiness. It is well established that a note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts. Here, contrary to the statements on the certificate of readiness, discovery was incomplete when the note of issue and certificate of readiness were filed. Thus, a material fact in the certificate of readiness was incorrect, and the note of issue and certificate of readiness must be vacated. We therefore modify the order accordingly.

(Internal quotations and citations omitted).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are special procedural requirements, such as the requirement to file a Note of Issue and certification that discovery is complete. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.