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Adam Leitman Bailey, P.C. Defeats Motion to Vacate Note of Issue That was Filed One Day Too Late

In a highly irregular and favorable decision, Adam Leitman Bailey, P.C. defeated a motion to vacate Note of Issue by Defendant in a landlord-tenant lawsuit arguing that it was filed one day after the statutory deadline to file a motion had expired.

Under New York’s Uniform Rules for the Supreme Court governing civil lawsuits, litigants file what is called a Note of Issue after discovery has been completed, certifying to the court that the case is ready for trial. Adam Leitman Bailey, P.C.’s client, a residential tenant, filed suit against Defendant, his residential landlord, alleging that he was entitled to a rent stabilized lease and had been overcharged rent under the rent stabilization laws for multiple years. Both the Plaintiff and Defendant conducted extensive discovery pursuant to specific deadlines set by various court orders which did not permit any adjustment except by court order, including the deadline to file a Note of Issue.

On January 31, 2024, the final date set by the court to do so, Adam Leitman Bailey, P.C. filed a Note of Issue indicating all discovery was complete. Precisely 21 days later, on February 21, 2024, Defendant moved to vacate Note of Issue, claiming that they still needed further discovery, including a deposition of Plaintiff.

New York Supreme Court Rule 202.21(e) requires that a motion to vacate a Note of Issue must be filed “within 20 days after service” of a Note of Issue. At oral argument before New York State Supreme Court Justice Shlomo S. Hagler, Adam Leitman Bailey, P.C. Litigation Partner Eric S. Askanase argued that absent special circumstances, which did not occur here, Defendant’s motion to vacate Note of Issue must be denied simply because it was filed more than 20 days after Note of Issue, and the length of delay was irrelevant. Plaintiff countered that the minimal delay should be excused and that the Court should permit it to take Plaintiff’s deposition under its equitable powers, regardless.

Although Adam Leitman Bailey, P.C. was confident it should prevail in light of the plain statutory language and favorable caselaw concerning missed deadlines to file Note of Issue, there was a concern that the court might view a single day’s delay as “de minimis”; and so Askanase also argued three additional reasons that the motion should be denied. First, he argued that the various discovery dates, including the date for filing Note of Issue, were set forth in orders that were signed and issued by Justice Hagler and that Defendant had waived their rights to conduct any further discovery when they failed to comply with the dates set forth in those orders.

Second, even if the Note of Issue were not vacated, Defendant should not be allowed to conduct any post Note of Issue discovery, including a deposition of Plaintiff, because, also under New York Supreme Court rule 202.21(d), it should only be permitted if “unusual or unanticipated circumstances” arose after Note of Issue was filed requiring such deposition “to prevent substantial prejudice”. Here, Defendant admitted that they had noticed Plaintiff’s deposition before the Note of Issue was filed but had simply never finalized a deposition date.

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