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  1. #1
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    Note of Issue - New York Supreme Court

    What is the name of your state (only U.S. law)? NY

    My NOI is scheduled to be filed on Friday. The court today asked that I file something even though the Defendant has not completed ANY discovery. The clerk informed me that I MUST file an affadavit attesting that discovery has NOT been completed , but that I am still technically required to file something or my case will be thrown out.

    Section 202.21 Note of issue and certificate of readiness - reads below

    (d) Pretrial Proceedings. Where a party is prevented from filing a note of issue and certificate of readiness because a pretrial proceeding has not been completed for any reason beyond the control of the party, the court, upon motion supported by affidavit, may permit the party to file a note of issue upon such conditions as the court deems appropriate. Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.



    My question - Do I need to file a MOTION or a NOI ? or both ? Very confused

    Not really sure what I need to file. Is there a form I can follow ? How do I draft this so that I am not precluded from making sure my present discovery requests are satisfied ??? I thought a NOI must be accompanied by a Certificate of Readiness ? ? ? ? and I am not "Ready for Trial" as all our discovery request have not been completed because Defendant has not complied. How can I file a NOI ?
    Last edited by melsdutchworld; 01-04-2011 at 03:22 PM.
  2. #2
    You Are Guilty is offline Senior Member
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    Quote Originally Posted by melsdutchworld View Post
    My NOI is scheduled to be filed on Friday. The court today asked that I file something even though the Defendant has not completed ANY discovery. The clerk informed me that I MUST file an affadavit attesting that discovery has NOT been completed , but that I am still technically required to file something or my case will be thrown out.
    Welcome to civil litigation in NYC. The clerk is correct - failure to file the NOI by the court-imposed deadline (should be listed in your PC order) means your suit is kaput.

    Your problem is that you have waited too long to address your outstanding discovery issues. Options now include:

    1- File the NOI and CoR as instructed by the court but check "all known discovery is complete" box "no".
    RESULT: Odds are clerk's office will file NOI as if the box was marked "yes" and you will have a pre-trial conference scheduled and a trial date set. In Queens Supreme, that means a trip to the Referee for the pre-trial where he will ask you if all discovery is complete. If you say "yes", he gives you a trial date 2-3 months down the road. If you say "no", he may order certain discovery to be completed, but he can still potentially send it out for trial.

    2- Do not file the NOI, do not pass Start, do not collect $200.
    RESULT: Not a good idea - your complaint will be dismissed.

    3- File a motion for an order extending the NOI filing deadline, along with a demand to compel production of the outstanding discovery within XX days (20-30 usually) or else the defendant's Answer will be stricken. [You will need a good faith affirmation for the discovery portion - see 22 NYCRR 202.7(a)*]. Given the short time frame, you would have to do this by Emergency Order to Show Cause to get it heard before Friday.
    RESULT: Hard to say, as I don't recall if you had a Commercial Division case or not. If you don't, odds are you will severely piss off the Judge who hears these motions and after reaming you a new butthole, he will deny it anyway. If you do have a Commercial Part case, the order to show cause is heard by the presiding judge who probably has their own Part Rules on how to handle these things. Best to call their clerk and explain your predicament and ask if the E-OSC is the best way to proceed:
    http://www.courts.state.ny.us/courts/11jd/supreme/civilterm/civil_partrules.shtml

    3a- If the problem is that the defendant never appeared, you will want a Order to Show Cause for an extension AND a default.

    3b- As judges are loathe to extend the NOI deadline, you can alternatively ask for an order permitting discovery to continue after the NOI is filed with the same compel/strike the Answer condition. Judges are usually more amenable to this type of arrangement. But be warned, this can cause further problems for you down the road if the defendant continues to ignore your demands as it can still potentially get sent out for trial.

    4- Get defendant to sign stipulation saying that they agree to provide all outstanding discovery within XX days despite the filing of the NOI and CoR.
    RESULT: Odds are they 1) won't sign this at all, much less by Friday and 2) won't care as there is not much in the way of a penalty (for them) if they fail to provide the discovery. The only time they would be punished is if there is a court order to do it that they ignored.
    Quote Originally Posted by melsdutchworld View Post
    My question - Do I need to file a MOTION or a NOI ? or both ? Very confused
    Hopefully answered above.

    Quote Originally Posted by melsdutchworld View Post
    Not really sure what I need to file. Is there a form I can follow ? How do I draft this so that I am not precluded from making sure my present discovery requests are satisfied ??? I thought a NOI must be accompanied by a Certificate of Readiness ? ? ? ? and I am not "Ready for Trial" as all our discovery request have not been completed because Defendant has not complied. How can I file a NOI ?
    Yes; see above; it does; see above.

    Here's the form though: https://www.blumberglegalforms.com/Forms/537.pdf

    And don't forget your "Jury demand" and filing fee ($95?) if you want a jury trial.


    * Also see http://nycourts.gov/ad4/Court/Decisions/2010/06-11-10/PDF/0725.pdf for a nice discussion of the Good Faith Affirmation requirements.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  3. #3
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    YAG -

    I do have a PENDING motion that was filed in November - to strike Defendants Answer and also a motion for a default judgment b/c of Defendants failure to comply with discovery. This motion has been adjourned 2x. The motion references that our discovery demands have been served on Defendant 3x with no compliance

    How can I file a NOI and certificate of Readiness when there is a pending motion before the court to strike defendants answer/issue a default judgment ?

    The clerk seemed to imply that I need to file an affadavit attesting that discovery has not been completed, and give the reasons why

    Filing a NOI makes no sense
    Last edited by melsdutchworld; 01-04-2011 at 04:22 PM.
  4. #4
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    Are the court Uniform rules below what I should site in some sorta motion or is there a comparable part in the CPLR ?


    Section 202.21 Note of issue and certificate of readiness - reads below

    (d) Pretrial Proceedings. Where a party is prevented from filing a note of issue and certificate of readiness because a pretrial proceeding has not been completed for any reason beyond the control of the party, the court, upon motion supported by affidavit, may permit the party to file a note of issue upon such conditions as the court deems appropriate. Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.
  5. #5
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    I am so confused. How can the Defendant not respond to any discovery demands.

    1 - The court struck Defendants answer, but later reversed and vacated that order upon Defendants motion that he would go forward with discovery

    2- Defendant still does not comply with any discovery demands served multiple times by me. I file a motion to strike/ default judgment - b/c PC and CC have not been complied with in its entirety - this motion is subsequently adjourned multiple times over 12-18 mos. - and still adjourned until 2 weeks AFTER the NOI need be filed

    And then I am still required to file a NOI and afffirm I am "ready" for Trial ???

    This is bonkers
  6. #6
    You Are Guilty is offline Senior Member
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    The system is wacky, but them's the rules. The NYCRR is the only thing you need to be concerned over the NOI filing, not the CPLR.

    How the did motion get adjourned beyond your NOI deadline? (I hope you didn't consent to it). Best bet is still to call your judge's law secretary and explain the issue and ask how the judge prefers to handle it - order to show cause, expedited court conference, etc.

    Whatever you do, don't file and check that discovery is complete!
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  7. #7
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    Quote Originally Posted by You Are Guilty View Post
    Whatever you do, don't file and check that discovery is complete!
    I won't check the box. Additionally, tthe clerk kinda suggested that I file an affadavit that discovery hadnt been completed but I dont know if it will be accepted with the NOI

    I asked the judge if she could extend the NOI date to a date after the motion was heard but she would have none of it. I was explicitly told to file the NOI and she arm twisted me to allow Defendant an opportunity to put in opposition papers. Defendant is Pro se and I swear the court bends over backwards for Pro Se Defendants. Pro Se Plaintiffs, not so much
  8. #8
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    [url]https://www.blumberglegalforms.com/Forms/537.pdf[/url]

    How do I not check off that discovery has NOT been completed if I need to check box 7 and the only choices are "Completed", "Waived"; "Not required"

    I feel like I am in a Franz Kafka novel
  9. #9
    You Are Guilty is offline Senior Member
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    Add you own box "not completed" (and if you're feeling particularly ballsy, add "because Judge refused to extend NOI" ). And then submit a separate aff with it detailing why you are filing the NOI; all the discovery that remains outstanding; and that you are explicitly NOT waiving any rights to that discovery by being compelled to prematurely file the NOI.

    Will it work? No idea. I've seen it go both ways.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  10. #10
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    Quote Originally Posted by You Are Guilty View Post
    Add you own box "not completed" (and if you're feeling particularly ballsy, add "because Judge refused to extend NOI" ). And then submit a separate aff with it detailing why you are filing the NOI; all the discovery that remains outstanding; and that you are explicitly NOT waiving any rights to that discovery by being compelled to prematurely file the NOI.

    Will it work? No idea. I've seen it go both ways.
    I filed it w/ an affadavit. The judge seems real nice. I don't think I will have a problem getting the rest of my discovery completed. I think the Judge is just trying to keep the case on track.
  11. #11
    You Are Guilty is offline Senior Member
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    Sorry, I thought that was obvious. The judges are rated/reviewed partially based on the number of cases they keep under set deadlines, the NOI filing being the big one (its called "standards and goals" in the court system). Every case that goes past S&G is a mark against them. Consider that any one judge can be handling upwards of 5,000 cases, you can see why they get a little anal about this stuff.

    Good luck at the motion argument. Don't let them adjourn it again!
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  12. #12
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    Quote Originally Posted by You Are Guilty View Post
    Sorry, I thought that was obvious. The judges are rated/reviewed partially based on the number of cases they keep under set deadlines, the NOI filing being the big one (its called "standards and goals" in the court system). Every case that goes past S&G is a mark against them. Consider that any one judge can be handling upwards of 5,000 cases, you can see why they get a little anal about this stuff.

    Good luck at the motion argument. Don't let them adjourn it again!
    Thanks YAG. I did not know that judges get rated but it does makes sense. That would explain why she was insistent on me filing the NOI even though that no discovery has been completed

    I will hope that my motion to strike is successful, and I will not allow an adjournment at my next appearance

    I did have one question relating to an EBT.

    Is a party to the action allowed to depose the Defendant or must I get a neutral third party, and does that party need to be an attorney?

    Thanks in advance
  13. #13
    You Are Guilty is offline Senior Member
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    You can depose someone pro se, but expect issues if the other party is represented. You will also be responsible for paying for the court reporter & transcript, and potentially the room used (some courthouses still have free rooms available on a first-come, first-served basis, and some reporting agencies offer free use of a deposition room if you use their service [i.e. Diamond]).

    You may also want to try to work some language into any court order compelling them to appear for an EBT to the effect of "Deft. is ordered to appear for deposition on or before February X, 2011. Failure to appear for EBT by that date will result in Deft's Answer being stricken."

    Otherwise, the deadline will roll around, they won't appear, you'll be on the hook for the court reporter's "no show" fee and you'll also be forced to make another motion to the court to compel the EBT.
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.
  14. #14
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    Quote Originally Posted by You Are Guilty View Post
    You can depose someone pro se, but expect issues if the other party is represented.


    What type of problems can I expect ? Objections ?
  15. #15
    You Are Guilty is offline Senior Member
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    At the very minimum. Expect all sorts of gamesmanship, as no attorney will expect you to actually know the rules governing depositions. Here's the trick - there are none. There is a (relatively) recent change in the rules which says that if there is an objection, the procedure is to say "objection" and the witness has to answer. Gone are the days of blocking questions, or making speaking objections (where you make some long winded objection to tip off the witness what to look out for).

    Read & learn these rules: http://www.nycourts.gov/rules/trialcourts/221.shtml

    Also take the phone number to the judge's part in case they give you trouble at the dep. (Nothing works better than calling the judge for a ruling when you're right and the other side doesn't know the rules ).
    Quote Originally Posted by Tranquility
    Once you get to crazy land, it is only a guess on how to get out.

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