In the recent year, the First Department has turned over a more lenient leaf for post-note of issue discovery for plaintiffs and defendants alike, slowly relaxing the stringent and somewhat draconian requirements of 22 NYCRRR 202.21(d).
The court’s focus seems to have shifted to prejudice, or lack thereof, in these matters. In two decisions in the last month, the court enunciated the standard for post-note of issue discovery as being permitted “as long as neither party will be prejudiced.” Entirely absent from the analyses is the “unusual and unanticipated circumstances” standard of 22 NYCRR 202.21(d).
