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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: March 6, 2015

Second Department Rules That Court Should Have Allowed Post-NOI Discovery

On February 25, 2015, the Second Department issued a decision in Portilla v. Law Offices of Arcia & Flanagan, 2015 NY Slip Op. 01626, granting post-Notice of Issue discovery.

In Portilla, the defendants in a legal malpractice action appealed, among other things, the trial court’s denial of post-RJI discovery. The Second Department reversed, explaining:

A court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that unusual or unanticipated circumstances developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice. Here, the appellants demonstrated the existence of unusual or unanticipated circumstances which warranted granting their request for post-note-of-issue discovery. Accordingly, the Supreme Court should have granted that branch of the appellants’ motion.

(Internal quotations and citations omitted) (emphasis added).

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