Rizzo v. Balish & Friedman

Summary

The Appellate Division, Second Department, reversed an order denying the plaintiffs’ unopposed motion to vacate the note of issue and certificate of readiness in a dental malpractice and lack-of-informed-consent action. The court held that the certificate materially failed to comply with 22 NYCRR 202.21 because discovery remained outstanding and granted the motion to vacate.

Holdings

1. Because the certificate of readiness stated that discovery proceedings had not been completed, outstanding discovery requests remained, and the case was not ready for trial, it materially failed to comply with 22 NYCRR 202.21; therefore, the filing of the note of issue was a nullity.
2. The plaintiffs' motion to vacate should have been granted because it was made within 20 days after service of the note of issue, was supported by an affidavit showing that the case was not ready for trial, and established that substantial discovery remained outstanding.

Questions Presented

1. Whether a note of issue and certificate of readiness must be vacated when the certificate materially fails to comply with 22 NYCRR 202.21 by acknowledging that discovery remains outstanding and the case is not ready for trial.
2. Whether plaintiffs timely established grounds under 22 NYCRR 202.21(e) to vacate the note of issue and certificate of readiness.

Disposition

reversed