Post Note of Issue Discovery and the “Wherefore” clause.

Don't get too caught up in the NOI discovery issue.  Read all the way down where the court discusses the "Wherefore" clause.  This is why you put in "such other, further, or different
relief" etc etc etc.

22 NYCRR 202.21 Note
of issue and certificate of readiness

Tirado v Miller, 2010 NY Slip Op 04364 (App. Term, 2nd, 2010)

A certificate of readiness certifies that all discovery is completed,
waived, or not required and that the action is ready for trial (see 22
NYCRR 202.21[b]). The effect of a statement of readiness is to
ordinarily foreclose further discovery
(see Blondell v Malone, 91
AD2d 1201; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate
Corp.,
74 AD2d 734; Bookazine Co. v J & A [*3]Bindery, 61 AD2d 919).

Discovery that is nevertheless sought after the filing of a note
of issue and certificate of readiness is governed by a different set of
procedural principles than discovery that is sought prior to the filing
of a note of issue. Pre-note discovery includes disclosure of "all
matter material and necessary in the prosecution or defense of an
action"
(see CPLR 3101[a]), which is to be liberally construed (see
Allen v Crowell-Collier Publ. Co.,
21 NY2d 403, 406; Byck v
Byck,
294 AD2d 456, 457; U.S. Ice Cream Corp. v Carvel Corp., 190
AD2d 788). Post-note discovery, on the other hand, may only be sought
under two procedural circumstances set forth in 22 NYCRR 202.21. As
discussed by this Court in an opinion by Justice Feuerstein in Audiovox
Corp. v Benyamini
(265 AD2d 135, 138), one method of obtaining
post-note discovery is to vacate the note of issue within 20 days of its
service pursuant to 22 NYCRR 202.21(e), by merely showing that
discovery is incomplete and the matter is not ready for trial. The
second method, beyond that 20 days, requires that the movant, pursuant
to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate
"unusual or unanticipated circumstances and substantial prejudice"
absent the additional discovery
(Audiovox Corp. v Benyamini, 265
AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles
v 938 SCY Ltd.,
283 AD2d 935, 936).

Here, it is not contested that the note of issue and certificate
of readiness were filed in February 2008. The note of issue was never
stricken as a result of any motion filed within the 20-day deadline set
forth in 22 NYCRR 202.21(a). Accordingly, any additional discovery
sought by the plaintiff from Travelers must meet the requirements of 22
NYCRR 202.21(d) that the discovery be needed because of "unusual or
unanticipated circumstances" and that its absence causes "substantial
prejudice."

We recognize that the trial court did not grant any unrequested
relief, but rather, granted the specific relief sought by the defendants
and Travelers in their motion of quashing the plaintiff's subpoena and,
in effect, granting a protective order. On appeal, the plaintiff takes
issue, inter alia, with the Supreme Court's having determined the motion
on a ground unrelated to the privilege and relevance issues briefed by
the parties. However, in rendering decisions on motions, trial courts
are not necessarily limited by the specific arguments raised by parties
in their submissions.
CPLR 2214(a) provides that a notice of motion
shall specify the time and place of the hearing on the motion, the
supporting papers upon which it is based, the relief demanded, and the
grounds therefor. A court typically lacks the jurisdiction to grant
relief that is not requested in the moving papers
(see McGuire v
McGuire,
29 AD3d 963, 965; NYCTL 1998-1 Trust v Prol Props.
Corp.,
18 AD3d 525, 527). The notice of motion in this instance
sought an order quashing the subpoena and granting a protective order on
the limited grounds of privilege and irrelevance. However, the notice
of motion also contained a general prayer, for "such other and further
relief as [the] [c]ourt may deem just and proper."

General relief clauses, for "such other, further, or different
relief," are often included in notices of motion by practitioners to
cover the possibility that the appropriate relief is not what the movant
has specifically asked for, "but is close enough to enable the court to
grant it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2214:5). The presence of a general relief clause enables
the court to grant relief that is not too dramatically unlike that which
is actually sought, as long as the relief is supported by proof in the
papers and the court is satisfied that no party is prejudiced
(see
Frankel v Stavsky,
40 AD3d 918; HCE Assoc. v 3000 Watermill Lane
Realty Corp.,
173 AD2d 774; Lanaris v Mutual Benefit Life Ins.
Co.,
9 AD2d 1015).

The bold is mine.

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