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Current Developments in the Commercial Divisions of the
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Posted: April 9, 2016

Trial Court Should Have Vacated Note of Issue Because Discovery Was Not Complete

On March 30, 2016, the Second Department issued a decision in Singh v. CBCS Construction Corp., 2016 NY Slip Op. 02345, holding that it was error for a trial court to refuse to vacate a note of issue, explaining:

The defendant demonstrated that discovery was not complete in that the depositions of the parties and nonparty witnesses and physical examinations of the plaintiff had not occurred, properly executed medical authorizations had not been provided, there were outstanding requests for discovery, and the case was not ready for trial. Under these circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to vacate the note of issue.

(Internal quotations and citations omitted).

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