Commercial Division Blog

Posted: December 4, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Discovery/Disclosure

Court Denies Motion to Compel and To Vacate Note of Issue

In a Decision and Order, dated October 14, 2023, in O’Connor v. Society Pass, Inc., Index No. 656938/2019, Justice Joel M. Cohen denied defendant’s motion to compel discovery and to strike the Note of Issue.  The Court explained:    

First, the pleadings in this case were filed in January of 2020 and Defendants initial discovery demands were served in July of 2020. Defendant has not offered any reason why it waited more than two-and-a-half years to serve supplemental discovery requests immediately before the already much-delayed close of discovery. No depositions were taken nor is any other fact alleged to support Defendant's allegation that "Plaintiff is obviously attempting to hide documents in order to cover up his wrongdoing" (Moving Br., at 2 [NYSCEF 208]).

Second, the record does not indicate that any evidence has been withheld or that any of the allegedly withheld evidence is necessary for Defendant's claims or defenses ( Gama Aviation Inc. v Sandton Capital Partners, LP, 113 AD3d 456,456 [1st Dept 2014]). Counsel for Plaintiff represented that certain categories of documents sought did not exist and that production was complete as to certain other categories. Following the filing of its motion, Defendant had an opportunity to depose Mr. O'Connor, including about the representations that certain documents have been produced or do not exist (Marquez v 171 Tenants Corp., 161 AD3d 646, 647 [1st Dept 2018] [overturning prelusion order where testimony as to search efforts was sufficient to establish that documents were not withheld]). The Court also granted defendant summary judgment on plaintiff’s claim for unjust enrichment because there was a written contract governing the transferring of the properties.

Third, the record does not reflect a good faith attempt by Defendant to meet-and-confer as required by 22 NYCRR 202.7(a) as incorporated into Rule 14 of the Rules of the Commercial Division after receiving comments from Plaintiff's counsel on May 11, 2023 (NYSCEF 221) including representations that documents did not exist or that production was complete (Nagi v Ninety-Fourth St., LLC [N.Y. Sup Ct, New York County 2023] [citing Amato]).

Finally, the motion to compel responses to supplemental interrogatories is denied. The supplemental interrogatories are beyond the scope authorized by Rule 11-a of the Rules of the Commercial Division. Further, the information sought could and should have been the subject of questioning at Mr. O'Connor's deposition. As the narrative at the beginning of this decision makes clear, this case needs to move forward not backward into recurring rounds of discovery….

In light of the denial of Defendant's motion to compel, there is no basis to strike the NOI. 22 NYCRR 202.21(e) provides, in relevant part, "[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, or that the certificate of readiness fails to comply with the requirements of this section in some material respect." As discovery is closed and there are no other issues that warrant striking the NOI, the motion is denied (500 Eighth Ave. Ltd. Liab. Co. v Resource Training Ctr. Inc., 214 AD3d 570, 571 [1st Dept 2023] [collecting cases]).

As this case demonstrates, a party should not wait to make discovery demands lest it lose the opportunity to do so.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning discovery or a note of issue.