Pursuant to the rule, "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect." A statement in a certificate of readiness to the effect that all pretrial discovery has been completed is a material fact, and where that statement is incorrect, the note of issue should be vacated. On a timely motion to vacate, the movant
is required only to demonstrate why the case is not ready for trial, and is not required to establish that additional discovery is necessary. However, where the Supreme Court has directed the completion of discovery by a certain date or where the party seeking vacatur has failed to timely comply with court orders and discovery demands, denial of a motion to vacate is proper.
Cioffi v. S.M. Foods, Inc., NY Slip Op 09250 (2d Dep't December 24, 2019)
Here is the decision.
