Commercial Division Blog

Posted: November 22, 2013 / Categories Commercial, Discovery/Disclosure, Court Rules/Procedures

Defendant Sanctioned for Filing Inaccurate Note of Issue and Certificate of Readiness

On November 12, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Vladeck, Waldman, Elias & Engelhard, P.C. v. Paramount Leasehold, L.P., 2013 NY Slip Op. 32908(U), sanctioning a litigant for filling a Note of Issue and Certificate of Readiness that falsely indicated that discovery was complete.

In Vladeck, the defendant filed a Note of Issue and Certificate of Readiness "two and half months before the deadline scheduled by the Court," arguing that discovery was complete because the plaintiff had not, in defendant's view, "pursu[ed] pretrial discovery with sufficient vigor." Defendant did not withdraw the Note of Issue even after plaintiff informed defendant that the Certificate of Readiness was inaccurate and that plaintiff had filed a motion to compel within the time provided by the court's scheduling order.

The Court granted plaintiff's motion to vacate the Note of Issue and sanction defendant for filing it, writing:

Viewing the matter as a whole, [defendant's] filing of the Note of Issue two and half months before the deadline scheduled by the Court, while discovery requests remained outstanding, premised on the demonstrably incorrect assertion that Plaintiff failed to timely file its motion to amend and compel, justifies the imposition of sanctions. [Plaintiff] should not have had to resort to motion practice in order to enforce the Note of Issue deadline set by the Court and to point out the inaccuracies in [defendant's] filing.

It can be a challenge for a litigant to balance the need to file a Note of Issue on the schedule set by the court and at the same time deal with outstanding discovery disputes. But Vladeck was not such a case. Rather, it appears to have been about a litigant filing an inaccurate Note of Issue early for tactical reasons. The result in Vladeck shows the dangers of sharp practice in the Commercial Division.