Certificate of readiness

McKiernan v Vaccaro, 2019 NY Slip Op 00267 [1st Dept. 2019]

“Pursuant to Uniform Rules for Trial Courts, 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” (Slovney v Nasso, 153 AD3d 962, 962; see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669). Here, the plaintiff’s certificate of readiness stated that significant discovery remained outstanding when the note of issue and certificate of readiness were filed. 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 (see Slovney v Nasso, 153 AD3d at 962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was a nullity, the plaintiff’s argument that the Supreme Court erred in permitting Mancuso to continue with discovery is without merit. Moreover, the plaintiff’s contention that counsel’s affirmation of good faith in support of Mancuso’s motion to vacate the note of issue was insufficient is without merit (see Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 527). Accordingly, we agree with the court’s determination to grant Mancuso’s motion to vacate the note of issue and to permit Mancuso to conduct certain discovery.

Mordekai v City of New York, 2019 NY Slip Op 00431 [2d Dept. 2019]

We agree with the Supreme Court’s denial of that branch of the plaintiff’s cross motion which was, in effect, to impose a sanction on the defendants by precluding them from relying upon certain evidence in support of their motion for summary judgment or introducing such evidence at trial. The plaintiff waived any objection to the adequacy and timeliness of the defendants’ disclosure of certain evidence by filing a note of issue and certificate of readiness stating that disclosure was complete and that there were no outstanding requests for disclosure (see Iscowitz v [*2]County of Suffolk, 54 AD3d 725Melcher v City of New York, 38 AD3d 376Simpson v City of New York, 10 AD3d 601). In any event, the plaintiff did not make a showing of willful and contumacious conduct on the part of the defendants, nor did the plaintiff demonstrate that he would be substantially prejudiced by the post-note of issue disclosure of the evidence (see Iscowitz v County of Suffolk, 54 AD3d at 725).

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