Supreme Queens Alert. Is Your Note of Issue a Nullity? It Might Be. By M. Abneri and J. Pieret

Factual Situation

Many plaintiffs’ attorneys in Queens County are filing Notes of Issue with discovery outstanding. This is required by the court, often pursuant to a call from the Compliance and Settlement Part chambers. That call directs that the Note of Issue be filed or the case will be dismissed pursuant to the 90 Day Notice contained in the Compliance Conference Order.

Unlike the other Metropolitan area courts, Queens County is unique in that there is only one Compliance Conference, and parties are restricted to stipulating to extend the time to file a Note of Issue only up to the complex track date set forth by the court system, if that is even allowed or possible.   Also unique to Queens County is the fact that Notes of Issue are not supposed to be vacated no matter what discovery is outstanding. Those of us who have appeared in CMP with a timely motion to vacate the Note of Issue upon valid grounds are told to “Stip it Out.”  If that stipulation provides that the Note of Issue be vacated, that language is almost always stricken by the Referee.

The 90 Day Notice language contained in the Queens County Compliance Conference Order has been ruled a valid 90 Day Notice. Any party to the lawsuit can enforce the 90 day notice terms contained in it. (Bowman v Kunick, 35 A.D.3d 643; Bhatti v Empire Realty Associates, 101 A.D.3d 1066).

When filing the Note of Issue, many attorneys will either, 1) state in detail what the outstanding discovery remains; or 2) simply state in the Statement of Readiness that discovery is complete when it is, in fact, not complete (basically, a false certification). Neither option results in the filing of a proper Note of Issue, and either option can result in dismissal of the case.

New Law

A recent Second Department case originating from Supreme Queens illustrates the dangers in filing a Note of Issue stating that discovery is not complete.  There are older cases, discussed below, that describe the perils of falsely certifying that discovery is complete when filing a Note of Issue.

On June 5, 2013, the Second Department decided Furrukh v Forest Hills Hospital, 107 A.D.3d 668. The Court reversed Justice O’Donoghue and dismissed a medical malpractice case where the Statement of Readiness indicated that there was outstanding discovery. The Court stated:

“Pursuant to Uniform Rules for Trial Courts (22NYCRR) §202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR202.21 [a], [b]). While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action (see CPLR 3216[c]; Baczkowski v Collins Constr. Co.,89 NY2d 499, 503), here, the plaintiff’s certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the Certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted (see 22NYCRR 202.21 [b], [e]; Blackwell v Long Is. Hosp., 303 AD2d 615, 616; Garofalo v Mercy Hosp., 271 AD2d 642).
Having received a 90-day demand pursuant to CPLR 3216, the plaintiffs were required to file a proper note of issue or move, before the default date, to vacate the 90-day demand or to extend the 90-day period pursuant to CPLR 2004 (see Cope v Barakaat, 89 AD3d 670, 671; Gagnon v Campbell, 86 AD3d 623, 624; Blackwell v Long Is. Coll. Hosp.,303 AD2d at 616; Spilky v TRW, Inc., 225 AD2d 539, 540).” (Emphasis Supplied).

Prior Law

To further illustrate the problem involving the 90 day notice issue, the Second Department has previously stated in  Garofalo v Mercy Hosp., 271 AD2d 642,( 2nd Dept. 2000):

Contrary to the plaintiffs’ contentions, the court properly vacated the note of issue and dismissed the action. While the filing of a note of issue within 90 days precludes a court from dismissing the action here the plaintiffs’ certificate of readiness incorrectly stated that all pretrial discovery had been completed when it had not been. Because this was a material fact, the filing of the note of issue was a nullity and therefore it was properly vacated. (Citations Omitted, emphasis supplied.)

A similar result was reached in Blackwell v Long Is. Coll. Hosp.,303 AD2d 615 (2nd Dept.2003).

Nor can plaintiff avoid potential dismissal by blaming the defendant(s). In Huger v Cushman & Wakefield, 58 A.D.3d, 682 (2nd Dept., 2009) the Court stated:
“Accordingly, even if the defendants engaged in dilatory conduct in responding to discovery demands, such conduct did not constitute a reasonable excuse for plaintiffs’ failure to respond to the 90-day notice.  If the defendants were, in fact, impeding discovery, the plaintiffs were not without remedies. For example, they could have moved for permission to serve and file a conditional note of issue pursuant to 22 NYCRR 202.21(d), to compel disclosure pursuant to CPLR 3124, to strike the defendants’ answers pursuant to CPLR 3126 (3), or pursuant to CPLR 2004, prior to the default date, to extend the time to serve and file the note of issue   (Emphasis Supplied, citations omitted)

Solution?

Defendants’ attorneys are changing their motions to vacate Queens County Notes of Issue. They are beginning to include a request for dismissal pursuant to the Compliance Conference Order 90 Day Notice. The request for dismissal is based on the fact the case law cited above says that this Note of Issue is a “nullity.”

It is strongly suggested that plaintiffs’ counsel move to extend their time to file the Note of Issue as suggested in Huger (above), thereby avoiding the possibility that their clients’ cases could be dismissed.

There are other implications, such as when does the time to file a motion to strike null & void Note of Issue have to be made, if at all? If the Note is a nullity, do you really need to move to vacate it? When does the time to move for summary judgment run if the Note of Issue is a nullity? Is the case really on the trial calendar if the Note of Issue is a nullity?  Is the case really on the trial calendar even after discovery is completed post-Note? What happens if an application is made in TSP to strike the case from the trial calendar because the Note of Issue is a nullity?

Consider these issues as you get close to the deadline to file your Note of Issue and act accordingly.

Jim Pieret and Michael Abneri
THE VIEWS EXPRESSED HEREIN ARE SOLELY THOSE OF THE AUTHORS AND ARE NOT INTENDED TO REPRESENT THE VIEWS OF ANY OTHER ENTITY, ORGANIZATION OR INSTITUTION.