Practice point: Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 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. While the
filing of a note of issue within 90 days after service upon the
plaintiff of a written demand
precludes a court from dismissing the action, pursuant to CPLR 3216[c], here, the plaintiffs' certificate of readiness stated 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 the motion to vacate the note of issue was granted.
Student note: 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. The plaintiffs failed to timely file a proper note of issue or make a
motion in response to the 90-day demand. Thus, to avoid dismissal of
the complaint, the plaintiffs were required to show a justifiable excuse
for the delay and a potentially meritorious cause of action.
Case: Furrukh v. Forest Hills Hosp., NY Slip Op 03968 (2d Dept. 2013).
Here is the decision.
Monday's issue: An invalid 90-day demand.
